iicoa.  Dcpt.    i^cou.   1A.   ,\iain   .L 


t Ovary 


PRINCIPLES  OF 
LABOR  LEGISLATION 


BY 
JOHN   R.  COMMONS,  LL.D. 

PROFESSOR    OF    POLITICAL    ECONOMY,    UNIVERSITY   OF   WISCONSIN 

FORMER  MEMBER  INDUSTRIAL  COMMISSION  OF  WISCONSIN  AND 

UNITED    STATES    COMMISSION    ON    INDUSTRIAL    RELATIONS 

AND 

JOHN   B.  ANDREWS,  PH.D. 

SECRETARY     OF     THE     AMERICAN*  ASSOCIATION     FOB 
LABOR    LEGISLATION,   EDITOR   OF   THE   "AMERI- 
CAN      LABOR       LEGISLATION        REVIEW" 
LECTURER  ON  SOCIAL  LEGISLATION 
COLUMBIA    UNIVERSITY 


PREPARED   IN   CO-OPERATION    WITH 

THE   AMERICAN  BUREAU   OP 

INDUSTRIAL     RESEARCH 


HARPER  &  BROTHERS  PUBLISHERS 
NEW  YORK  AND  LONDON 


"~ 

.  o,  by  Harper  &    •' 

Printed  in  Stat~>  of  America 

~:ber,  1920 

e-u 


CONTENTS 

PAGE 

PREFACE  TO  REVISED  EDITION xi 

CHAPTER  I:   THE  BASIS  OF  LABOR  LAW 

1.  THE  LABOR  CONTRACT i 

(1)  Industry 2 

(2)  Labor  Law 3 

(3)  Politics       .      . 4 

2.  INDIVIDUAL  RIGHTS 5 

3.  DUE  PROCESS  OF  LAW 6 

(1)  Public  Powers 10 

a.  Power  to  Preserve  Peace  and  Execute  the  Laws  .  10 

b.  The  Taxing  Power 

c.  Guardianship n 

d.  Eminent  Domain 12 

e.  Proprietorship 13 

f.  The  Police  Power 13 

g.  Commerce  Power  and  Federal  Powers      ...  15 
h.  Police  Power  and  the  Constitution      .      .      .      .  15 

(2)  Public  Authorities 18 

a.  The  Executive ,  20 

b.  The  Legislature  .      .      . 21 

c.  The  Judiciary 22 

d.  The  Administration .  23 

(3)  Principles 24 

a.  Public  Benefit 24 

b.  Equal  Protection  of  the  Laws 28 

CHAPTER  II:    INDIVIDUAL  BARGAINING  ......  35 

i.  THE  LABORER  AS  DEBTOR 35 

(1)  Servile  Labor 36 

a.  Slavery      .            36 

b.  Serfdom 37 

c.  Peonr1"—  .... 

(2)  From  Master  and  S  .Employer  and  Employee 

a.  Indentured  Service .t  •. 

V 


vi  CONTENTS 

PAGE 

b.  Apprenticeship 41 

c.  Contract  Labor 42 

d.  Padrone  System 46 

e.  Imprisonment  for  Debt 47 

f.  Wage  Exemption 47 

g.  Homestead  Exemption 48 

h.  Assignment  of  Wages 49 

2.  THE  LABORER  AS  CREDITOR 50 

(1)  Time  of  Payment       50 

(2)  Place  of  Payment 52 

(3)  Basis  of  Payment 53 

(4)  Medium  of  Payment 53 

a.  "Living  In" 53 

b.  Company  Houses  and  Labor  Camps  ....  54 

c.  Company  Stores 55 

(5)  Deductions 56 

(6)  Mechanics'  Liens  and  Wage  Preference      ....  60 

3.  THE  LABORER  AS  TENANT 61 

(1)  Classes  of  Agricultural  Workers 61 

a.  Hired  Laborers 62 

b.  Tenants 63 

c.  "Croppers" 63 

(2)  Agricultural  Labor  Legislation 65 

4.  THE  LABORER  AS  COMPETITOR 68 

(1)  Protection  against  Immigrants 69 

a.  Induced  Immigration 70 

b.  Exclusion  of  Orientals 74 

c.  The  Literary  Test 76 

(2)  Protection  against  Convict  Labor 78 

LEGAL  AID  AND  INDUSTRIAL  COURTS 81 

(1)  Private  and  Public  Legal  Aid 82 

(2)  Industrial  Courts 86 

CH  VPTER  III:    COLLECTIVE  BARGAINING 91 

i.  THE  LAW  OF  CONSPIRACY 91 

(1)  Origins  of  Collective  Bargaining 92 

(2)  Doctrine  of  Conspiracy 97 

(3)  Court  Decisions 101 

a.  Strikes 101 

b.  Boycotts 107 

c.  Picketing 109 

(4)  Restrictions  on  Employers  and  Employees      .      .      .  113 

(5)  Justification  of  True  Collective  Bargaining      .      .      .  116 

(6)  Damage  Suits 121 

(7)  English  Law  of  Labor  Disputes 123 

lEDLVTION   BY   GOVERNMENT 125 

(1)  Definition  of  Terms 126 

(2)  Foreign  Countries 128 


CONTENTS  vii 

PAGE 

(3)  United  States        136 

a.  State  Legislation 136 

b.  Federal  Legislation 138 

3.  COERCION  BY  GOVERNMENT 149 

(1)  Restrictions  on  Strikes  and  Lockouts 149 

(2)  Development  of  Coercive  Intervention       .      .      .      .  152 

a.  England 152 

b.  Australasia 153 

c.  Canada  and  the  United  States 168 

4.  UNIONS  OF  GOVERNMENT  EMPLOYEES 175 

(1)  Recognition  of  Unions 175 

(2)  Cooperative  Employment 181 

CHAPTER  IV:   THE  MINIMUM  WAGE 182 

1.  ECONOMIC  BASIS 183 

(1)  Low  Wage  Scale 183 

(2)  Economic  Weakness  of  Low-paid  Workers      .      .      .  185 

2.  HISTORICAL  DEVELOPMENT 187 

(1)  Australasia 187 

(2)  Great  Britain 190 

(3)  Other  Countries  Abroad 193 

(4)  The  United  States 195 

3.  STANDARDS 198 

(1)  Australia .  198 

(2)  Great  Britain 200 

(3)  The  United  States 200 

a.  Definition  of  the  Living  Wage 200 

b.  Wage  Losses  from  Unemployment      ....  202 

c.  Profits  of  the  Business 203 

d.  Substandard  Workers 204 

4.  METHODS  OF  OPERATION 205 

(1)  Flat  Rate  Laws 205 

(2)  Wage  Board  Laws 206 

5.  RESULTS        210 

(1)  Changes  in  Wage  Rates 211 

(2)  Changes  in  Wages  above  the  Minimum     .      .      .      .  212 

(3)  Effect  on  Unemployment 213 

(4)  Effect  on  Industry 214 

(5)  Effect  on  Trade  Unionism 215 

(6)  Effect  on  Efficiency 215 

6.  CONSTITUTIONALITY .     .     .216 

CHAPTER  V:    HOURS  OF  LABOR 221 

i.  MAXIMUM  HOURS 226 

(1)  Children 226 

(2)  Women 230 

(3)  Men 247 

a.  Public  Work 248 

b.  Private   Employment:     (a)   Transportation;  (b) 


viii  CONTENTS 

PAGE 

Mines  and  Tunnels ;   (c)  Factories  and  Work- 
shops         252 

c.  Constitutionality          262 

2.  REST  PERIODS 271 

(1)  Daily  Rest  and  Meal  Times 271 

(2)  Night  Work 273 

(3)  Saturday  and  Legal  Holidays 277 

(4)  One  Day  of  Rest  in  Seven 278 

(5)  Annual  Vacations 284 

CHAPTER  VI:    UNEMPLOYMENT ,     .  287 

i.  REGULATION  OF  PRIVATE  EMPLOYMENT  OFFICES  .     .     .     .291 

(1)  Abuses  of  Private  Agencies 292 

(2)  Restrictive  Legislation 293 

^  2.  PUBLIC  EMPLOYMENT  EXCHANGES 297 

ffit               (i)  State  and  Municipal  Offices 297 

(2)  Federal  Activity 304 

(3)  European  National  Systems 308 

3.  SYSTEMATIC  DISTRIBUTION  OF  PUBLIC  WORK 312 

(1)  Emergency  Work 313 

(2)  Adjustment  of  Regular  Work 315 

4.  REGULARIZATION  OF  INDUSTRY 319 

CHAPTER  VII:    SAFETY  AND  HEALTH 323 

1.  REPORTING 325 

(1)  Accidents 326 

(2)  Occupational  Diseases 328 

2.  PROHIBITION 332 

(1)  Exclusion  of  Persons 333 

a.  Children:    (a)  Age  Requirements;    (b)  Physical 

Requirements;      (c)    Educational    Require- 
ments;   (d)  Special  Problems  in  Enforcing 

Restrictions  on  Child  Labor       ....  333 

b.  Women:      (a)    Prohibited    Employments;      (b) 

Childbirth  Protection 346 

c.  Men:   (a)  Physical  Qualifications;    (b)  Technical 

Qualifications 349 

(2)  Prohibition  of  Substances  or  Instruments        .      .      .  354 

3.  REGULATION 356 

(1)  Factories  and  Workshops 357 

a.  Machine  Guards 357 

b.  Protection  against  Fire 359 

c.  Lighting,  Heating,  and  Ventilation     ....  360 

d.  Seats,  Toilets,  and  Dressing-rooms      ....  363 

e.  Protection  from  Infectious  Disease      ....  365 

f.  Tenement  House  Manufacture       ...            .  366 

(2)  Mines  and  Tunnels 

•ning 

sed  Air 


CONTENTS 

PAGE 

(3)  Transportation 372 

a.  Navigation 372 

b.  Railroads  and  Street  Cars 374 

(4)  Development  of  Standards          379 

(1)  Defects  of  Early  Legislation 379 

(2)  The  Method  of  Administrative  Orders     .      .      .381 

CHAPTER  VIII:    SOCIAL  INSURANCE 383 

1.  INDUSTRIAL  ACCIDENT  INSURANCE 386 

(1)  Rules  of  Employers'  Liability 387 

a.  Duties  of  the  Employer 387 

b.  Burden  of  Occupational  Risks 388 

c.  Fellow  Servant  Rule 388 

d.  Contributory  Negligence 390 

e.  Assumption  of  Risk 390 

(2)  Beginnings  of  Industrial  Accident  Insurance  .      .      .  392 

a.  German  System 392 

b.  Methods  in  Other  Countries 394 

c.  Inclusion  of  Occupational  Diseases      .      .      .      .395 

(3)  Compensation  Legislation  in  the  United  States      .      .  397 

a.  Scope  of  Laws:   (a)  Employments  Included;   (b) 

Injuries  Included;  (c)  Occupational  Diseases  401 

b.  Scale  of  Compensation:  (a)  Medical  Attendance; 

(b)  Waiting  Period;  (c)  Compensation  for 
Total  Disability;  (d)  Compensation  for  Par- 
tial Disability;  (e)  Compensation  for  Death  403 

c.  Rehabilitation 410 

d.  Method  of  Administration 410 

e.  Security  of  Payment 411 

2.  HEALTH  INSURANCE 415 

(1)  Early  Steps  in  Health  Insurance 416 

(2)  Compulsory  Health  Insurance 417 

(3)  Maternity  Insurance 422 

(4)  Need  in  the  United  States    . 426 

3.  OLD  AGE  AND  INVALIDITY  INSURANCE 429 

(1)  Unassisted  Old  Age  Insurance 430 

(2)  Assisted  State  Plans 43 1 

(3)  Compulsory  Systems 432 

(4)  Straight  Pensions 435 

(5)  The  Problem  in  the  United  States 437 

4.  WIDOWS'  AND  ORPHANS'  INSURANCE 439 

(1)  Voluntary  Life  Insurance 439 

(2)  Compulsory  Insurance 440 

(3)  Mothers'  Pensions 441 

5.  UNEMPLOYMENT  INSURANCE 442 

(1)  Voluntary  Out-of-Work  Benefits 442 

(2)  The  Ghent  System 443 

(3)  Compulsory  Unemployment  Insurance       .... 


CONTENTS 


PAGI 


r  r  AFTER  IX:    ADMINISTRATION 449 

1.  THE  EXECUTIVE 450 

2.  THE  LEGISLATURE 453 

3.  THE  JUDICIARY 458 

4.  THE  INDUSTRIAL  COMMISSION 465 

(1)  Administrative  Investigations 466 

(2)  Representation  of  Interests 479 

(3)  Civil  Service 486 

(4)  Bill  Drafting 488 

5.  PENALTIES  AND  PROSECUTIONS 490 

6.  COOPERATION  BY  PRESSURE 498 

SELECT  CRITICAL  BIBLIOGRAPHY 501 

BLE  OF  CASES  CITED 527 

INDEX 537 


PREFACE  TO  REVISED  EDITION 

IN  January,  1916,  when  this  book  was  first  offered  to  citizens 
and  students,  the  United  States  possessed  for  its  half -million 
civil  employees  in  case  of  injury  ' '  the  worst  compensation  law 
in  the  world,"  and  no  protection  at  all  for  their  old  age  or  in- 
validity. There  was  no  Federal  legislation  against  child  labor, 
and  little  against  excessive  hours  in  railroading.  The  country 
had  never  had  a  unified  system  of  public  employment  offices. 
Restoration  to  earning  power  of  industrial  cripples  had  hardly 
been  thought  of.  Agitation  for  universal  workmen's  health 
insurance  was  just  beginning.  Regulation  of  shop  conditions 
by  administrative  orders  had  still  to  win  wide  acceptance. 
Such  important  matters  as  the  legal  minimum  wage,  hour 
legislation  for  men  in  general  employments,  and  even  work- 
men's compensation  for  accidents,  were  trembling  in  the  scales 
of  the  United  States  Supreme  Court. 

The  four  and  a  half  intense  years  which  have  intervened 
were  not  without  their  quickening  influence  in  the  field  of  labor 
legislation.  A  new  sense  of  the  worth,  perhaps  also  of  the 
power,  of  the  ordinary  man  and  woman  of  toil  has  shot  through 
the  thinking  of  lawmakers.  The  result  is  written  large  upon 
the  pages  of  the  statute  books.  The  United  States  govern- 
ment has  now  a  compensation  law  for  its  own  employees — 
enacted  in  1916,  the  year  of  a  presidential  election — which 
stands  as  a  model  to  the  states  and  to  other  countries.  Rail- 
roading has  been  put  upon  the  basic  eight-hour  day.  Federal 
restrictions  on  child  labor,  based  on  the  power  to  regulate 
interstate  commerce,  were  hardly  declared  unconstitutional 
when  they  were  reenacted  under  the  taxing  power.  For  a 
period  during  the  war  a  national  employment  service  was  ex- 
tended throughout  the  country.  Finally,  1920,  another  presi- 
dential year,  resulted  in  the  adoption  by  Congress  of  a  Federal 
civil  service  retirement  act  and  of  a  measure  for  government 
aid  to  states  adequately  providing  for  the  retraining  of  indus- 
trial cripples,  Meanwhile,  Supreme  Court  decisions  have  sus- 


xii  PREFACE    . 

tained  hour  legislation  for  men,  minimum  wage  laws,  and  sev- 
eral different  types  of  workmen's  compensation  acts. 

In  the  same  four  and  one-half  years  the  states  have  not  been 
idle.  Twelve  new  commonwealths  enacted  workmen's  com- 
pensation laws,  leaving  by  1920  only  six  which  had  not  taken 
this  first  step  in  a  comprehensive  social  insurance  program. 
Commissions  to  study  health  insurance  were  established  in 
eleven  states,  and  in  New  York  a  health  insurance  bill  backed 
by  the  trade  union  movement  was  passed  by  the  Senate. 
Three  new  states  adopted  the  eight-hour  day  for  women,  and 
five  jurisdictions  enacted  minimum  wage  legislation.  Other 
progressive  laws,  as  well  as  amendments  gradually  strength- 
ening existing  statutes,  and  a  general  tightening  up  of  ad- 
ministrative supervision,  have  followed  one  another  rapidly. 
Despite  a  few  setbacks,  the  trend  has  been  strongly  toward 
more  thorough  protection  of  the  lives  and  welfare  of  the 
wage-earning  population. 

In  all  this  forward  development  it  is  only  the  details  of  the 
labor  code  which  have  changed.  The  fundamental  principles 
on  which  the  legislation  is  based  remain  as  they  were.  No 
important  stand  taken  in  the  first  edition  of  this  book  has  yet 
had  to  be  modified.  For  additional  details  of  statutes  enacted 
year  by  year,  the  reader  is  referred  to  the  annual  Review  of 
Labor  Legislation,  published  by  the  American  Association 
for  Labor  Legislation.  This  Review,  it  may  be  added,  is  so 
arranged  as  to  serve  as  a  convenient  supplement  to  the  present 
work.  For  assistance  in  checking  up  the  new  experience  and 
in  bringing  the  text  down  to  date,  grateful  acknowledgment  is 
due  to  Margarett  A.  Hobbs,  Olga  S.  Halsey,  Irene  Sylvester 
Chubb,  and  Solon  De  Leon,  of  the  staff  of  the  American  Asso- 
ciation for  Labor  Legislation;  to  Edwin  E.  Witte,  secretary 
of  the  Industrial  Commission  of  Wisconsin;  to  Mrs.  Glenn 
Turner,  of  the  Wisconsin  Legislative  Reference  Library;  and 
to  Prof.  Don  D.  Lescohier,  of  the  University  of  Wisconsin. 

JOHN  R.  COMMONS 
JOHN  B.  ANDREWS 

June,  1920. 


PRINCIPLES    OF 
LABOR    LEGISLATION 


PRINCIPLES    OF 
LABOR    LEGISLATION 

CHAPTER   I 
THE   BASIS  OF   LABOR  LAW 

Modern  industry  is  mainly  a  matter  of  buying  and  selling. 
Scarcely  any  person  lives  on  the  things  which  he  alone  pro- 
duces with  his  own  property.  Formerly  the  protection  of  his 
person  and  his  physical  property  was  the  principal  part  of  the 
law.  Now  the  protection  of  that  intangible  property  which 
arises  through  buying  and  selling  and  is  defined  in  the  law  of 
contract,  occupies  the  attention  of  lawmakers,  courts,  and 
the  administrative  Authorities. 

i.   THE  LABOR  CONTRACT 

The  labor  contract  is  one  of  several  kinds  of  contract,  which 
until  recently  has  differed  from  the  others  but  little  in  the 
eyes  of  the  law.  Like  the  others  it  originates  in  an  agreement, 
implies  a  promise,  creates  rights  and  duties,  and  is  enforced, 
if  need  be,  by  the  power  of  the  state. 

But  the  labor  contract,  in  course  of  time,  has  come  to  be 

recognized  as  something  peculiar.     When  a  bushel  of  wheat 

ight  and  sold,  when  a  factory  or  farm  is  transferred, 

a  banker  receives  deposits  or  lends  his  credit,  when  a 

•  ation  issues  stocks  or  bonds,  the  rights  and  duties  created 

:y  can  be  fulfilled  by  delivering  something  external  and 


2  PRINCIPLES   OF   LABOR  LEGISLATION 

unhuman.  But  when  a  laborer  agrees  to  work  he  must  deliver 
himself  for  a  time  into  the  control  of  another.  He  earns  his 
living,  not  by  working  upon  his  own  property,  but  by  working 
upon  the  property  of  another,  and  by  accepting  all  the  con- 
ditions he  finds  there.  And,  if  he  has  no  property  of  his  own 
sufficient  to  fall  back  upon,  he  is  under  an  imperious  necessity 
of  immediately  agreeing  with  somebody  who  has.  This  pe- 
culiar relation  between  a  propertyless  seller  of  himself,  on  the 
one  hand,  and  a  propertied  buyer  on  the  other,  coupled  as  it 
is  with  equal  suffrage  of  both  in  the  politics  of  the  country, 
has  gradually  acquired  recognition  as  something  sufficiently 
important  for  the  government  to  take  notice  of.  While  the 
courts  and  law  books  have  dealt  with  the  labor  contract  as 
similar  to  other  contracts,  legislation  goes  behind  the  legal 
face  of  things  and  looks  at  the  bargaining  power  which  pre- 
cedes the  contract.  It  distinguishes  the  price  bargain,  the 
investment  bargain,  the  real-estate  bargain,  and  others,  from 
the  wage  bargain.  The  former  are  dealings  between  property- 
owners.  The  latter  is  a  bargain  which  involves  not  only 
wages,  but  also  hours  of  labor,  speed  and  fatigue,  safety  and 
health,  accident  and  disease,  even  life  itself.  Unemployment 
is  failure  to  make  such  a  bargain;  immigration,  child  labor, 
education,  prison  labor,  collective  bargaining,  and  so  on,  are 
conditions  which  determine  the  bargaining  power  of  the 
laborer.  Every  topic  in  labor  legislaticm  is  a  phase  of  the 
wage  bargain,  and  it  is  because  a  large  class  of  people  have 
come  to  depend  permanently,  not  on  their  property  or  re- 
sources, but  on  these  bargains  with  property-owners,  that 
labor  legislation  has  significance. 

This  spectacle  of  the  free  laborer,  without  property  but  with 
the  ballot,  bargaining  for  his  livelihood  but  electing  his  rulers, 
is  something  new  and  unaccustomed,  measured  by  the  life  of 
nations.  It  has  come  about  through  what  may  be  called  in- 
dustrial, legal,  and  political  changes. 


(i)  Industry 

Scarcely  a  generation  has  passed  since  the  natural  resc 
of  the  country  were  sufficiently  free  to  permit  people  without 


THE   BASIS  OP  LABOR   LAW  3 

property  to  acquire  ownership  merely  by  labor.  The  home- 
stead laws,  culminating  in  1862,  may  be  looked  upon  as  early 
labor  legislation,  for  they  were  intended  to  provide  "free 
land"  by  preventing  the  public  domain  from  falling  into  the 
hands  of  capitalists  and  slave-owners  and  so  to  furnish  an  out- 
let to  laborers  from  the  East.  Workmen  who  could  not  be- 
come farmers  or  miners  could  become  tradesmen  and  inde- 
pendent mechanics  in  the  new  towns.  But  since  the  lands 
have  been  closed  by  occupation,  and  their  values  have  in- 
creased, money  or  credit  is  required  to  purchase  them.  This 
means  that  laborers  without  capital  must  seek  capitalists  to 
employ  them. 

In  1869  the  first  Pacific  railway  was  completed,  and  im- 
mediately Chinese  coolies  made  their  appearance  in  Massa- 
chusetts as  strike-breakers,  and  the  manufactured  products  of 
Massachusetts  contributed  to  unemployment  in  California. 
The  railway  and  steamship  have  made  labor  almost  as  mov- 
able as  capital,  and  any  bargaining  advantage  which  wage- 
earners  have  in  one  section  of  the  country  is  quickly  levelled 
by  migration. 

Huge  factories  and  corporations  were  almost  unknown  a 
generation  ago,  but  now  the  United  States  Steel  Corporation 
has  some  200,000  employees,  and  single  establishments  have 
thousands  and  ten  thousands.  The  special  bargaining  power 
of  skilled  mechanics  is  levelled  down  to  that  of  the  lesser 
skilled. 

Thus  the  three  industrial  factors  of  closed  land,  labor 
mobility,  and  large  scale  production  have  produced  a  class 
permanently  dependent  xm  wages. 


(2)  Labor  Law   -* 

When  land  and  natural  resources  were  free,  labor  was  not 
always  free.  Slave  labor  in  the  South,  indentured  labor  and 
apprenticeship  in  the  North  and  South,  contract  labor  from 
abroad,  were  based  on  legal  -devices  by  which  the  laborer 
could  be  kept  from  running  away.  Not  until  the  enactment 
of  the  thirteenth  amendment,  fallowing  the  Civil  War,  did 
slavery  and  involuntary  servitude,  except  as  a  punishment 


4  PRINCIPLES  OF  LABOR  LEGISLATION 

for  crime,  become  everywhere  illegal.1  The  labor  contract 
henceforth  has  its  peculiar  significance.  Although  in  theory 
it  is  like  other  contracts,  yet  it  cannot  in  fact  be  enforced. 
The  laborer  cannot  sell  himself  into  slavery  or  into  involun- 
tary servitude.  He  retains  the  right  to  change  his  mind,  to 
quit  work,  to  run  away.  Certain  other  contracts  can,  in  the 
absence  of  any  other  sufficient  remedy,  be  enforced  by  the 
courts  by  compelling  "specific  performance."  2  But  specific 
performance  of  the  labor  contract  is  involuntary  servitude. 
Business  contracts,  if  violated,  are  ground  for  damages  which 
the  court  orders  paid  even  to  the  extent  of  taking  all  of  the 
business  property  of  the  debtor.  The  labor  contract  also,  if 
violated,  is  ground  for  damages,  but  for  the  court  to  order 
damages  paid  out  of  labor  property  would  be  to  order  the 
laborer  to  work  out  the  debt.  This  is  involuntary  servitude. 
Hence  the  employer  is  left  with  the  empty  remedy  of  bringing 
suit  against  a  propertyless  man.  He  can  protect  himself  by 
making  contracts  which  he  also  can  terminate  at  any  time 
by  discharging  the  workman  without  notice. 

Thus  the  labor  contract  becomes,  in  effect,  a  new  contract 
every  day  and  hour.  It  is  a  continuous  process  of  wage  bar- 
gaining. It  carries  no  effective  rights  and  duties  for  the 
future  and  is  as  insecure  as  it  is  free.  After  land  has  ceased 
to  be  free  the  laborer  becomes  free.  Closed  resources  and 
freedom  with  insecurity  produce  in  time  a  permanent  class 
of  wage-earners. 

(j)  Politics 

In  the  northern  states  the  suffrage  was  granted  to  all  male 
wage-earners  during  the  years  preceding  1845,  by  removing 
the  property  qualifications.3  This  was  as  much  as  forty  to 


Constitution  of  the  United  States,  Amendments,  Art.  XIII: 

"SEC.  I.  Neither  slavery  nor  involuntary  servitude,  except  as  a 
punishment  for  crime,  whereof  the  party  shall  have  been  duly  con- 
victed, shall  exist  within  the  United  States,  or  any  place  subject  to 
their  jurisdiction. 

"Sec.  2.  Congress  shall  have  power  to  enforce  this  article  by  ap- 
propriate legislation." 

The  exception  in  the  case  of  the  seaman's  contract  will  be  noted  later. 

2 See  Andrews,  American  Law,  1908,  Vol.  I,  pp.  582,  1586. 

3  Rhode  Island  was  the  only  northern  state  that  retained  the  property 
qualification. 


THE   BASIS  OF   LABOR   LAW  5 

sixty  years  in  advance  of  other  nations,  and  was,  in  fact,  the 
first  experiment  in  the  world's  history  of  universal  admission 
of  the  propertyless  laborer  to  an  equal  share  in  government 
with  the  propertied  capitalist  or  employer.  A  similar  experi- 
ment was  made  in  the  South  after  the  slaves  were  freed  by 
war.  Henceforth  the  laborer  not  only  shares  in  electing  the 
legislature  that  makes  the  law,  but  he  shares  in  selecting  the 
judges  who  interpret  it  and  the  governors,  factory  inspectors, 
sheriffs,  marshals  and  constables  who  enforce  it.  The  labor 
contract  and  the  wage  bargain  become  as  much  a  question  of 
the  control  of  politics  as  they  are  of  large-scale  industry  and 
the  mobility  of  labor.  Wherever  property-owners  or  em- 
ployers can  deprive  the  laborer  of  his  suffrage  or  can  control 
his  vote,  there  they  can  more  effectively  control  his  bargaining 
power.  He  may  be  disfranchised,  as  in  the  South,  or  intimi- 
dated, as  in  some  towns  controlled  directly  by  corporations,  or 
manipulated  and  bought,  as  in  towns  controlled  indirectly 
through  the  political  "machine."  So  the  struggle  for  the  suf- 
frage, begun  ninety  years  ago  in  the  North,  renewed  in  the 
struggle  of  twenty  years  ago  for  the  secret  ballot,  and  kept  up 
in  the  struggle  against  political  corruption,  is  both  a  cause 
and  a  consequence  of  the  appearance  of  wage-earners  as  a 
class  in  modern  industry. 


2.  INDIVIDUAL  RIGHTS 

Federal  and  state  constitutions  contain  the  fundamental 
laws  and  create  the  authorities  of  government  with  the  power 
to  interpret,  amend,  and  enforce  them.  The  Declaration  of 
Independence  and  most  of  the  state  constitutions  declare  that 
all  men  are  created  equal.  Prior  to  the  Civil  War  certain  of 
the  southern  states  declared  only  that  all  freemen  are  equal. 
Those  constitutions  were  afterward  changed  to  read  all  men 
are  equal.  Some  constitutions  say  that  they  are  "equally  free 
and  independent."  If  they  are  equal,  they  have  equal  rights. 
Some  of  these  rights  are  declared  to  be  natural,  essential,  in- 
defeasible, inalienable.  Among  the  inalienable  rights  men- 
tioned in  different  constitutions  are  life,  liberty,  the  pursuit 
of  happiness,  acquiring,  possessing  and  protecting  property, 


6  PRINCIPLES  OF  LABOR  LEGISLATION 

reputation,  and  enjoyment  of  the  gains  or  proceeds  of  a  man's 
own  labor.1 

The  federal  constitution  guarantees  certain  means  for  pro- 
tecting these  rights,  and  prohibits  certain  measures  that  vio- 
late or  impair  them.  Among  the  protective  measures  are  the 
writ  of  habeas  corpus,  trial  by  jury,  a  republican  form  of  gov- 
ernment, freedom  of  speech  or  of  the  press,  the  right  peaceably 
to  assemble  and  to  petition  the  government  for  a  redress  of 
grievances,  the  right  to  keep  and  bear  arms,  security  against 
unreasonable  search  and  seizure  of  persons,  of  houses,  papers 
or  effects,  indictment  by  a  grand  jury,  speedy  and  public 
trial,  compensation  for  property  taken  for  public  use,  due 
process  of  law,  equal  protection  of  the  laws.  Among  the  pro- 
hibited measures  are  bills  of  attainder,  ex  post  facto  laws  and 
laws  impairing  the  obligation  of  contracts.  Finally,  the 
enunciation  of  certain  rights  cannot  be  construed  to  deny  or 
disparage  others  retained  by  the  people.  These  restrictions, 
however,  with  the  exception  of  those  insuring  equal  protection 
of  the  laws  and  the  obligation  of  contracts,  are  binding  on 
Congress  and  not  on  the  states.  The  fourteenth  amendment 
prohibits  any  state  from  denying  due  process  of  law  and  equal 
protection  of  the  laws,  but  under  the  decisions  of  the  courts 
this  protection  does  not  extend  to  other  rights  guaranteed  in 
the  early  amendments  to  the  constitution,  which,  as  has  just 
been  said,  are  protected  only  against  infringement  by  Congress.2 


JThe  Declaration  of  Independence  is  "read  into"  the  constitutions, 
where  it  says:  "We  hold  these  truths  to  be  self-evident,  that  all  men 
are  created  equal,  that  they  are  endowed  by  their  Creator  with  certain 
inalienable  rights,  that  among  these  are  life,  liberty,  and  the  pursuit  of 
happiness."  Twenty-eight  state  constitutions  declare  that  men  are 
naturally  equal.  Five  restricted  this  to  "freemen"  before  the  Civil 
War  and  afterward  changed  the  phrase  (Kansas,  1858).  Three  states 
assert  the  equality  of  all  men  framing  a  "social  compact."  Thirty-five 
states  have  clauses  embodying  the  doctrine  of  natural  rights.  The 
right  of  acquiring  property,  by  which  contract  is  understood,  is  claimed 
as  an  inalienable  natural  right  by  twenty-six  states.  Three  states  in- 
clude the  right  to  reputation,  which  may  be  considered  as  a  kind  of 
property.  The  enjoyment  of  the  gains  of  a  man's  own  industry,  or 
of  the  proceeds  of  his  labor,  is  an  inalienable  right  in  two  states.  Kansas 
specifies  the  right  to  control  over  one's  own  person.  Montana,  when 
mentioning  the  right  to  seek  and  obtain  safety  and  happiness,  adds  the 
proviso  "in  all  lawful  things." 

2Willoughby,  Constitutional  Law  of  the  United  States,  1910,  Vol.  I, 
pp.  175  ff. 


THE   BASIS   OF   LABOR   LAW  7 

If  certain  rights,  such  as  life,  liberty,  and  property,  are  strict- 
ly and  literally  "inalienable,"  then  they  cannot  either  be 
given  away  by  any  person  or  taken  away  by  any  other  person 
or  by  government,  either  by  coercion  or  by  persuasion,  either 
by  violence  or  by  voluntary  sale  and  compensation.  If  the 
owner  sells  them,  they  are  worthless  to  the  buyer,  because  he 
gets  no  title.  Of  course,  it  follows  that  these  rights  were 
never  considered  strictly  "inalienable."  Only  an  impossible 
anarchist  could  believe  this.  The  fourteenth  amendment 
partly  clears  the  atmosphere.  "Privileges  and  immunities" 
are  substituted  for  inalienable  rights.  Life,  liberty  and  prop- 
erty can  be  taken  provided  it  be  done  according  to  "due  proc- 
ess of  law."  "Equality"  becomes  "equal  protection  of  the 
laws."  In  other  words,  rights  become  "relative,"  not  "abso- 
lute," alienable  but  protected. 

But,  if  rights  are  relative,  then  their  meanings  and  defini- 
tions are  liable  to  change  when  the  relationships  to  which 
they  refer  happen  to  change!  The  rights  of  property  are  de- 
nned in  several  constitutions  as  the  right  of  acquiring,  possess- 
ing and  protecting  property.  These  were  the  significant  points 
in  the  definition  when  people  were  isolated,  as  they  were  in 
colonial  and  pioneer  times.  At  that  stage,  their  main  con- 
cern was  in  getting  and  holding  physical  property,  like  lands, 
crops  or  even  human  beings,  if  the  definition  of  property  in- 
cluded slaves.  -  But  in  modern  society,  based,  as  it  is,  mainly 
on  buying  and  selling,  the  right  to  withhold  property  from 
others  becomes  significant.  It  is  this  that  protects  the  in- 
dividual in  his  power  of  bargaining — his  power,  protected  by 
law,  -to  hold  back  and  wait  until  an  agreement  can  be  reached 
upon  the  exchange  value  of  the  property  before  permitting 
others  to  take  it  or  use  it. 

This  right  to  withhold  property  is  like  the  laborer's  right 
to  withhold  his  labor,  by  refusing  to  work  or  by  quitting 
work.  But  in  the  case  of  the  laborer  this  is  also  "  liberty  "- 
a  "personal"  right  rather  than  a  "property"  right.  It  is  his 
right  to  withhold  his  services  from  the  use  of  others  until 
their  value  can  be  agreed  upon.  This  is  the  legal  basis  of  his 
wage  bargain. 

Hence  property  and  liberty  change  places  and  merge  their 
meanings  when  industry  changes  from  the  agricultural  stage 


8  PRINCIPLES   OF  LABOR   LEGISLATION 

of  production  for  self  to  the  modern  stage  of  bargaining  with 
others.  The  wage-earner's  "property"  becomes  his  right  to 
seek  an  employer  and  to  acquire  property  in  the  form  of 
wages;  his  property  in  the  sense  of  liberty  is  his  right  to 
refuse  work  or  to  quit  work  if  the  conditions  are  not  satis- 
factory. The  employer's  "property"  is,  in  part,  his  right  to 
seek  laborers  and  acquire  their  services;  his  property,  in  the 
sense  of  "liberty,"  is  his  right  to  run  his  business  in  his  own 
way,  that  is,  in  part,  to  withhold  employment  or  to  dis- 
charge the  laborer  if  the  bargain  is  unsatisfactory. 

These  definitions  of  property  rights  are  evidently  quite  dif- 
ferent from  the  older  ideas  of  property  in  physical  things,  such 
as  lands,  buildings,  machinery  or  slaves.  They  signify  rights 
of  buying  and  selling,  of  access  to  a  market.  They  are  "in- 
tangible" property,  and  not  "tangible."  They  are  like  the 
"good  will"  of  a  business.  They  are  denned  as  "property" 
because  they  are  necessary  to  give  to  things  and  services  that 
value  in  exchange  which  in  modern  industry  depends  as  much 
on  selling  them  as  it  does  on  "producing"  them. 

Only  within  the  past  half-century  have  courts  and  legis- 
latures distinguished  and  protected  such  intangible  property 
as  good  will,  trade  marks  and  trade  names,  based  on  the 
right  of  access  to  a  commodity  market,  and  still  more  re- 
cently has  "access  to  a  labor  market"  been  treated  in  effect 
as  a  property  right  of  both  the  laborer  and  the  employer,  in 
addition  to  a  personal  right.1  Not  merely  the  contract  after 
it  is  made  is  property,  but  the  right  to  be  unhindered  by 
others  in  order  to  make  a  labor  contract  is  a  property  right. 
It  is  "intangible"  property  both  of  the  laborer  who  seeks  em- 
ployers and  of  the  employer  who  seeks  laborers.  It  is  in- 
tangible because  it  is  merely  the  act  of  offering  and  yet  with- 
holding services  or  commodities.  It  is  property  and  becomes 
capital  in  the  sense  that  it  is  the  power  of  getting  value  in 
exchange.  Just  as  the  employer's  property  is  both  his  phys- 
ical factory  and  his  intangible  business,  so  the  laborer's 
property  is  both  his  physical  body  and  his  intangible  labor. 
This  "intangible"  property  has  come  to  mean  a  part  of  what 


1  See  also  Willoughby,  Constitutional  Law,  Vol.  II,  p.  872;  Hall, 
Constitutional  Law,  1914,  pp.  134,  135;  "Doctrine  of  Conspiracy," 
P-  97- 


THE   BASIS  OP  LABOR   LAW  9 

was  formerly  known  as  personal  liberty.  It  is  that  kind  of 
liberty  that  has  money  value.  It  gives  value  alike  to  the 
laborer's  labor  and  the  employer's  business. 

If  meanings  of  property  and  liberty  change  with  changes 
in  industry,  so  does  the  meaning  of  equality.  Equality  for 
the  colonist  and  the  pioneer  signified  mainly  equal  right  to 
acquire  property  through  labor — now  it  signifies  equal  right 
to  acquire  it  through  bargaining.  But  where  bargaining  power 
on  the  one  side  is  power  to  withhold  access  to  physical  prop- 
erty and  the  necessaries  of  life,  and  on  the  other  side  is  only 
power  to  withhold  labor  by  doing  without  those  necessaries, 
then  equality  of  rights  may  signify  inequality  of  bargaining 
power.  The  gradual  recognition  of  inequalities  of  waiting 
power  has  required  changes  to  be  made  in  the  legal  means  of 
protecting  equality,  and  these  changes  underlie  the  history 
of  labor  legislation.  They  occur  within  limits  prescribed  by 
"due  process  of  law." 

3.  DUE  PROCESS  OF  LAW 

The  constitutions,  which  declare  private  rights  inalienable, 
yet  provide  methods  and  standards  both  to  abridge  them  and 
to  protect  them.  A  right  has  two  sides.  It  is  a  right  of  one 
and  a  duty  of  another,  or  of  all  others.  One  person  signs  a 
note  agreeing  to  pay  $20  to  another  person.  The  second  per- 
son has  a  right  to  receive  $20 — the  first  is  under  a  duty  to  pay 
it.  One  person  owns  a  piece  of  land.  He  has  a  right  to  use 
it  as  he  pleases — all  other  persons  are  under  the  duty  to  keep 
off  and  let  him  alone.  To  protect  the  rights  of  one  is  to  en- 
force the  duties  of  others.  If  a  right  of  one  is  abridged  or 
reduced,  the  corresponding  duty  of  another  or  of  all  others 
is  reduced.  If  a  debt  is  reduced  from  $20  to  $10,  both  the 
right  to  receive  and  the  duty  to  pay  are  reduced.  If  a 
person's  right  to  use  his  land  as  he  pleases  is  restricted,  then 
the  corresponding  duties  of  others  are  reduced.  On  the  other 
hand,  a  person's  duties  are  just  so  much  subtracted  from 
the  total  of  his  rights,  and  so  to  reduce  the  amount  of  his 
duties  is  to  enlarge  the  total  amount  of  his  rights.  To  reduce 
the  rights  of  one  is  to  enlarge  the  corresponding  rights  of  others. 

Here  must  be  noted  the  distinction  already  made  between 


io         PRINCIPLES  OF   LABOR  LEGISLATION 

the  labor  contract  and  the  wage  bargain.  The  two  may  be 
diametrically  opposed.  From  the  standpoint  of  the  wage 
bargain,  if  an  employer's  right  to  require  a  woman  to  work 
unlimited  hours  is  reduced,  then  the  woman's  duty  is  conse- 
quently reduced  and  her  rights  enlarged.  But,  from  the 
standpoint  of  the  labor  contract,  she  loses  the  right  to  con- 
tract for  unlimited  hours.  This  may  be  a  mere  fictitious 
right  for  her,  existing  only  in  the  eyes  of  the  law,  whereas  it 
is  in  reality  the  right  of  the  employer  to  compel  her  to  work. 
From  the  legal  standpoint  her  rights  are  abridged — from  the 
economic  standpoint  they  are  enlarged.  Likewise,  from  the 
legal  standpoint  the  employer's  duty  is  reduced  when  her 
hours  of  service  are  reduced.  From  the  economic  standpoint, 
his  duty  may  be  increased,  if  her  bargaining  power  is  in- 
creased. It  is  this  contradiction  between  the  labor  contract 
and  the  wage  bargain  that  labor  legislation  attempts  to 
reconcile.1 

The  state  exercises  the  great  and  sovereign  power  of  en- 
larging and  abridging  rights  and  duties  without  consent  of 
the  parties.  This  power  is  intended,  under  our  constitutions, 
to  be  safeguarded  most  minutely  and  accurately.  The  safe- 
guards are  developed  with  reference  to  an  all-inclusive  term, 
"due  process  of  law." 

Due  process  of  law,  along  with  the  provisions  of  the  con- 
stitutions, determines  both  the  substance  and  the  procedure 
of  government  in  three  principal  aspects:  first,  the  public 
powers,  or  the  powers  of  government  under  which  authority 
is  granted  to  protect,  enlarge  or  abridge  rights  and  duties; 
second,  the  public  authorities,  or  the  powers  of  officials  acting 
within  that  authority;  and  third,  the  principles,  standards  or 
"maxims"  that  determine  the  limits  beyond  which  public 
powers  and  public  authorities  shall  not  go.  Each  of  these 
aspects  affects  labor  legislation. 

(i)  Public  Powers 

a.  Power  to  Preserve  Peace  and  Execute  the  Laws.  Govern- 
ment exists,  first  of  all,  to  enforce  the  duty  to  keep  the  peace. 

1  See  "Public  Benefit,"  p.  24;  "Equal  Protection  of  the  Laws,"  p.  28; 
"Maximum  Hours,  Women,"  pp.  244-247. 


THE  BASIS  OF  LABOR  LAW  n 

To  do  this  it  may  use  force.  It  is  the  custodian  of  physi- 
cal coercion  and  the  authority  that  may  threaten  violence. 
Only  in  actual  self-defense  or  in  extreme  urgency  has  an  in- 
dividual the  right  to  resort  to  violence.  He  must  confine 
himself  to  persuasion  in  every  other  case.  Groups  of  individ- 
uals may  go  on  strike,  may  get  together  for  free  discussion, 
or  for  agitation  and  joint  action,  but  they  must  assemble  and 
act  peaceably.  Even  though  they  suffer  the  greatest  in- 
justice they  must  not  go  beyond  the  duty  of  obedience  to 
law  and  order.  The  authorization,  or  "power,"  of  the  state 
to  use  violence  in  order  to  execute  the  laws,  to  protect  person 
and  property,  to  punish  for  crime,  is  its  first  and  highest  justi- 
fication, without  which  no  other  power  could  exist,  and  all 
government  would  be  impossible.  This  is  its  exclusive  au- 
thority, and  it  cannot  compromise  the  question  or  permit 
private  violence,  except  at  the  peril  of  its  own  existence. 
Under  the  justification  of  preserving  the  peace  and  executing 
the  laws,  the  state  may  deprive  individuals  of  life,  liberty,  or 
property  without  consent  or  compensation. 

b.  The  Taxing  Power.     The  taxing  power  is  an  authoriza- 
tion under  which  government  takes  private  property  for  pub- 
lic purposes  without  compensation.     By  this  authority 'the 
state  provides  for  the  most  fundamental  legislation  for  or 
against  labor.     It  provides  free  schools,  compulsory  education 
for  future  workers,  and  pays  the  salaries  and  expenses  of  all 
officials  who  enforce  the  labor  laws.     A  labor  law  is  defeated 
as  surely  by  voting  against  taxes  to  enforce  it  as  by  voting 
outright  against  the  law  itself.     But  the  taxing  power  is  used, 
not  only  for  revenue,  but  also  for  purposes  which  otherwise 
are  justified  under  the  police  power.     A  tariff  on  the  products 
of  foreign  pauper  labor  is  designed  to  strengthen  the  bargain- 
ing power  of  American  labor.     A  tax  on  poisonous  phosphor- 
us matches  is  placed  so  high  that  it  brings  in  no  revenue  at 
all,  and  serves  only  to  protect  the  health  of  employees.     Under 
our  form  of  government  the  police  power  belongs  to  the  states 
and  not  to  the  federal  government.     But  the  federal  govern- 
ment does,  under  the  justification  of  the  taxing  power,  what 
the  states  might  do  under  the  police  power. 

c.  Guardianship.     The   state   is   the   universal   trustee   or 
guardian,  and  exercises  the  remnants  of  the  authority  which 


PRINCIPLES  OF  LABOR  LEGISLATION 

march  had  as  par  ens  patrice,  the  "father  of  his  country." 
In  mediaeval  times  the  property  of  a  chief  tenant  reverted  at 
death  to  the  king,  and  the  children  became  the  wards  of  the 
king,  for  the  king's  benefit.  Now  the  state  is  trustee  for  the 
benefit  of  the  children  and  the  people.  ,  This  power  justifies 
child  labor  legislation.  In  the  early  law  of  patria  potestas,  or 
"power  of  the  father,"  the  natural  father  was  the  owner  of 
his  child,  as  he  was  owner  of  his  wife,  lands,  slaves  and 
chattels.  It  was  the  child's  duty  to  obey.  Now,  the  child 
has  many  rights  against  its  parent,  and,  since  it  is  unable  to 
enforce  these  rights  itself  when  the  parent  violates  them,  the 
state  intervenes  as  its  guardian  on  behalf  of  the  people  of  the 
future.1  It  takes  the  child  away  if  necessary;  it  deprives  the 
parent  of  his  right  to  the  child's  earnings  by  prohibiting  its 
.employment  or  by  reducing  its  hours  of  labor;  it  enforces  the 
parent's  duty  of  education  by  compulsory  school  attendance. 
Patria  potestas  yields  to  the  authority  of  parens  patrice. 

This  authority  of  the  state  is  nowadays  treated  as  a  branch 
of  the  police  power.2  As  such,  it  is  a  justification  for  an  ex- 
treme use  of  the  police  power  not  permitted  in  other  cases. 
It  deals  with  children,  unable  to  make  bargains  for  themselves. 
The  police  power  primarily  interferes  with  the  bargains  of 
adults.  Restrictions  which  the  courts  would  not  permit 
under  other  classifications  within  the  police  power  are  un- 
questionably approved  when  the  justification  of  guardianship 
is  merged  with  that  of  police. 

d.  Eminent  Domain.  The  state  may  be  an  owner  of  prop- 
erty and  business,  like  a  private  person.  It  may  acquire 
ownership  by  various  methods,  all  of  which  rest  ultimately 
on  its  sovereign  power  of  coercion.  Some  of  its  properties 
are  acquired  by  conquest.  Others  are  purchased  by  voluntary 
bargain;  others,  by  compulsory  bargain,  under  the  power  of 
eminent  domain.  In  either  case  the  power  of  taxation  may 
furnish  the  funds. 

Eminent  domain  is  a  justification  of  the  state  in  taking 
property  from  its  own  citizens  without  their  consent.  It  dif- 
fers from  the  other  powers  in  that  it  applies  to  an  individual 
rather  than  to  a  class,  and  therefore  our  constitutions  require 

aSee  Andrews,  American  Law,  pp.  652-654,  and  cases  there  cited. 
2Freund,  Police  Power,  1904,  pp.  246-253. 


THE  BASIS  OF  LABOR  LAW        13 

that  compensation  be  made  when  property  is  taken.  The 
individual  has  no  inalienable  right  to  withhold  his  property 
from  the  state,  if  the  state  desires  it  for  a  public  purpose. 
But  the  constitutions  protect  the  individual  against  the  state 
by  requiring  just  compensation. 

e.  Proprietorship.  Whether  it  acquires  physical  property 
or  not,  the  state,  in  its  various  divisions  of  town,  city,  county, 
state,  and  nation,  becomes  an  employer  of  thousands  of  wage- 
earners.  It  fixes  their  wages,  hours  and  conditions  of  labor 
according  to  its  own  ideas  as  determined  by  its  legislattires, 
executives,  or  courts.  It  is  not  restricted,  as  it  is  when  exer- 
cising the  police  power,  because  it  is  not  taking  away  private 
property  (except  perhaps  as  it  falls  back  on  the  taxing  power 
to  pay  the  wages).  Consequently,  the  American  state,  under 
universal  suffrage  and  the  power  of  proprietorship,  or  public 
ownership  and  operation  of  public  business,  supported  by  the 
taxing  power,  has  gone  far  ahead  of  private  owners  in  raising 
wages,  shortening  hours  and  improving  the  conditions  of  its 
employees.  Even  contractors,  or  private  employers  who  work 
for  the  state,  are  required,  under  laws  that  provide  for  "fair 
wages,"  as  in  England,  or  for  the  "prevailing  rate  of  wages," 
as  in  America,  to  pay  higher  wages  or  observe  shorter  hours 
than  they  might  in  their  work  for  private  capitalists.1 

/.  The  Police  Power.  The  police  power  is  an  indefinite 
authorization  for  the  American  state  to  abridge  liberty  or 
property  without  consent  or  compensation  in  addition  to  its 
other  more  definite  powers.  An  individual  is  sick  with  diph- 
theria. The  state  draws  the  line  of  quarantine  beyond  which 
his  family  and  friends  are  deprived  of  their  liberty  of  move- 
ment. Valuable  animals  have  the  foot  and  mouth  disease. 
The  state  may  order  them  to  be  shot  and  buried  without  con- 
sent or  compensation.  A  public  utility  corporation  has  the 
valuable  bargaining  power  of  fixing  its  prices  for  gas,  elec- 
tricity, water,  or  transportation,  and  withholding  service  if  the 
price  is  not  paid.  The  state  reduces  the  price  and  compels 
the  company  to  continue  or  increase  the  service.  The  em- 
ployer has  valuable  rights  in  his  defenses  of  assumption  of 
risk,  fellow  servant,  and  contributory  negligence  in  suits 

1  See  "Historical  Development  of  the  Minimum  Wage,  United  States," 
p.  195;  "Maximum  Hours,  Men,"  p.  251. 


i4         PRINCIPLES   OF  LABOR   LEGISLATION 

brought  against  him  for  damages  caused  by  accident.  The 
state  takes  away  his  defenses  and  increases  by  so  much  the 
value  of  the  rights  belonging  to  his  employees.1  Other 
examples  might  be  given.  The  bulk  of  labor  legislation  by 
the  states  looks  for  authorization  to  the  police  power. 

The  police  power  in  the  United  States  differs  from  other 
powers  in  the  miscellaneous  and  indefinite  range  of  subjects 
that  it  may  cover.  It  is  defined  rather  by  what  it  does  not 
cover  than  by  what  it  does.  It  differs  from  the  taxing  power 
in  that  it  reduces  the  owner's  liberty  to  use,  acquire,  or  own 
property,  rather  than  the  revenues  derived  from  it.  It  dif- 
fers from  eminent  domain  in  that  it  applies  to  a  class  rather 
than  to  an  individual  and  does  not  require  compensation  to 
be  made.  While  it  includes  guardianship,  it  differs  from  it 
in  that  it  abridges  or  enlarges  the  rights  of  adults  and  full 
citizens  instead  of  those  of  children.  It  differs  from  public 
ownership  and  operation,  or  proprietary  power,  in  that  it 
abridges  or  enlarges  the  powers  of  private  persons  over  their 
own  persons  or  property  instead  of  the  power  of  tne  state 
over  its  own  property  or  business.  It  differs  from  the  power 
to  use  violence  in  order  to  keep  the  peace  and  execute  the 
laws,  in  that  it  is  one  of  the  justifications  or  reasons  advanced 
according  to  which  the  state  is  authorized  to  enact  the  laws 
themselves,  rather  than  the  physical  power  to  enforce  them 
after  enactment.  It  is  the  police  power,  not  the  police 
man. 

The  other  powers  of  the  state,  previously  mentioned,  are 
in  theory  definitely  limited.  Either  they  accomplish  only 
a  specific  object  of  government,  such  as  conquest,  peace,  the 
execution  of  laws,  the  acquisition  of  revenues,  or  the  purchase 
of  property,  or  they  extend  only  to  a  limited  class  of  people, 
such  as  children  or  public  employees.  But,  in  addition  to 
these  objects  and  persons,  there  are  those  large  an:l  indefinite 
purposes  of  public  safety,  health,  morals,  welfare,  and  pros- 
perity, and  those  many  but  indefinite  classes  of  producers  and 
consumers,  buyers  and  sellers,  employers  and  employees, 
who  often  are  restrained  by  government  under  the  police  power. 
Moreover,  these  purposes  and  classes  are  continually  changing 


1  See  "Industrial  Aecident  Insurance,"  p.  387. 


THE   BASIS  OF   LABOR  LAW  15 

as  industry  changes  from  agriculture  to  commerce,  or  as  prop- 
erty changes  from  physical  things  to  bargaining  and  con- 
tracts, or  as  population  becomes  more  congested  and  people 
interfere  with  one  another,  or  as  public  opinion  regarding 
rights  and  duties,  morals  and  welfare,  advances  from  igno- 
rance to  intelligence,  from  servitude  to  liberty.  It  is  the  police 
power,  for  the  most  part,  that  affords,  in  the  case  of  the  state 
governments,  that  elastic  justification  by  which  the  state 
abridges  or  enlarges  liberty  or  property  without  compensation, 
in  order  to  achieve  a  newly  recognized  public  purpose  through 
a  newly  recognized  class  of  persons  or  things. 

g.  Commerce  Power  and  Federal  Powers.  The  police  power 
is  not  isolated  from  the  other  powers.  All  of  them  are  but 
different  ways  of  looking  at  the  single  power  of  sovereignty. 
But,  under  our  system  of  government,  sovereignty  is  divided 
between  the  federal  government  and  the  state  governments. 
The  federal  government  has  specific  delegated  powers  of  taxa- 
tion, of  regulation  of  foreign  and  interstate  commerce,  while 
the  states  have  the  taxing  power,  and,  in  addition,  the  "police 
power. ' '  But  the  federal  government  uses  its  delegated  powers 
to  accomplish  the  same  purposes  that  the  states  accomplish 
with  their  reserved  police  power.  The  taxing  power  is  used 
by  the  federal  government,  not  merely  to  secure  revenue,  but 
to  protect  industry  and  labor  against  foreign  competition,  or 
to  suppress  state  bank-notes,  colored  oleomargarine,  or  poison- 
ous phosphorus  matches.  The  "commerce"  power  is  used  to 
regulate  railroad  rates  and  services,  to  restrict  hours  of  labor 
and  to  require  the  adoption  of  safety  devices  by  railroad  or 
steamship  companies.  New  lines  of  legislation  protecting 
labor,  such  as  child  labor  and  workmen's  compensation,  if 
adopted  by  state  governments,  are  justified  by  the  police  power 
— if  adopted  by  the  federal  government,  they  are  justified  by 
the  taxing  power  or  the  commerce  power.  Yet  all  powers  are 
but  the  single  power  of  sovereignty  split  up  to  fit  the  constitu- 
tional divisions  of  government.1 

h.  Police  Power  and  the  Constitution.     From  the  foregoing, 


1  For  detailed  history  of  the  conflict  between  the  commerce  and  police 
powers,  see  Hastings,  "The  Development  of  Law  as  Illustrated  by 
the  Decisions  Relating  to  the  Police  Power  of  the  State,"  in  Proceedings 
of  the  American  Philosophical  Society,  1900,  Vol.  XXXIX,  p.  349. 


1 6         PRINCIPLES  OF   LABOR   LEGISLATION 

it  will  be  seen  how  impossible  it  is  accurately  to  define  the 
police  power,  the  taxing  power,  or  the  commerce  power.  Com- 
paring the  police  power  with  the  principles  of  the  common 
law  Freund  says1  the  state  "exercises  its  compulsory  powers 
for  the  prevention  and  anticipation  of  wrong  by  narrow- 
ing common-law  rights  through  conventional  restraints  and 
positive  regulations  which  are  not  confined  to  the  prohibi- 
tion of  wrongful  acts.  It  is  the  latter  kind  of  state  con- 
trol which  constitutes  the  essence  of  the  police  power.  The 
maxim  of  this  power  is  that  every  individual  must  submit  to 
such  restraints  in  the  exercise  of  his  liberty  or  of  his  rights 
of  property  as  may  be  required  to  remove  or  reduce  the  dan- 
ger of  the  abuse  of  these  rights  on  the  part  of  those  who  are 
unskilful,  careless,  or  unscrupulous." 

Describing  this  power  as  developed  under  American  institu- 
tions, Ely  says:2  "It  is  that  power  of  the  courts  committed 
to  them  by  American  constitutions  whereby  they  must  shape 
property  and  contract  to  existing  social  conditions  by  settling 
the  question  of  how  far  social  regulations  may,  without  com- 
pensation, impose  burdens  on  property." 

Comparing  it  with  other  powers  of  government,  Hastings 
says:3  "It  is  not  necessary  to  adopt  Treitschke's  oft-repeated 
declaration,  that  the  state  is  force,  in  order  to  conclude  that 
the  'police  power'  is  a  fiction.  Every  judge  whom  we  have 
seen  attempt  to  analyze  it  finds  in  it  Madison's  'indefinite 
supremacy'  of  the  state.  The  doctrine  of  faculties  and 
separate  powers  of  the  state  may  not  be  as  essentially  absurd 
as  Treitschke  thinks,  but  in  our  case  the  term  is  certainly  a 
mere  abstract  and  collective  one  for  the  state,  where  regarded 
as  employed  in  certain  functions."  Hastings  also  says  that 
the  police  power  is  "a  branch  of  constitutional  law  peculiar 
to  countries  having  legislatures  with  limited  power.  It  is  an 
outgrowth  of  the  American  conception  of  protecting  the  in- 
dividual from  the  state."  4 

We  may  not  say  that  the  police  power  is  a  fiction,  for  it  is 
a  necessary  part  of  the  reasoning  by  which,  under  our  federal 


1  Police  Power,  p.  8. 

2  Property  and  Contract  in  Their  Relations  to  the  Distribution  of  Wealth, 
1914,  Vol.  I,  p.  220. 

3  Hastings,  op.cit.,p.  349.  *Ibid.,  p.  360. 


THE   BASIS  OF  LABOR   LAW 

constitution,  the  distinction  is  made  by  the  courts  between 
those  powers  that  belong  to  the  states  and  those  that  belong  to 
the  federal  government.  Yet,  from  another  point  of  view,  it 
is  a  fallacious  distinction  if  it  pretends  to  assign  to  the  states 
a  different  kind  of  power  from  that  exercised  by  the  federal 
government.  We  have  just  said  that  the  federal  government 
accomplishes,  under  the  name  of  "taxing  power"  or  "com- 
merce power,"  what  the  states  accomplish  under  the  name  of 
police  power.  While  the  refinements  of  legal  logic  may  seem 
to  make  these  powers  different,  they  are  identical  from  the 
standpoint  of  the  kind  of  legislation  and  the  public  purpose 
which  they  justify.  The  police  power  has  sometimes  narrowly 
been  held  to  be  limited  to  matters  of  health  and  morals.  But 
legislatures  and  Congress  refuse  to  be  limited  in  this  way. 
They  regulate  the  bargaining  power  of  individuals  and  cor- 
porations where  no  justification  can  be  found  in  the  protec- 
tion of  health  and  morals.  From  this  standpoint  the  theory 
of  the  police  power  is  used  by  the  courts  to  determine  how  far 
the  state  legislature  may  be  permitted  to  go.  But  they  use 
similar  standards  or  principles  to  determine  how  far  Con- 
gress may  go  in  using  the  taxing  power  and  the  commerce 
power. 

Hereafter,  for  our  purposes,  in  speaking  of  the  police  power, 
we  shall  use  the  term  in  this  broad  sense,  to  imply  all  the 
>wers  of  government,  whether  state  or  federal,  whether  of 
)lice,  taxation,  or  interstate  commerce,  in  so  far  as  they  are 
ised  to  justify  that  indefinite  extension  of  power  to  abridge 
[iberty  or  property  without  compensation  for  some  newly 
^ecognized  public  purpose.  The  practical  problem  with  which 
we  are  concerned  is  not  so  much  the  technical  legal  distinc- 
tions between  different  powers,  as  the  extent  to  which  these 
powers  are  increasingly  used  to  determine  the  bargaining  re- 
lations between  employers  and  employees.  In  this  way,  with- 
out formal  amendment,  the  American  constitutions  are  un- 
consciously amended  by  the  police  power  through  the  change 
of  public  opinion  ^regarding  the  rights  and  duties  of  labor. 
This  change  works  its  way  into  the  constitutions,  partly 
through  the  discretion  of  public  authorities,  and  partly 
through  the  application  of  old  principles  of  justice  to  new  con- 
ditions. 
2 


i8         PRINCIPLES  OF  LABOR  LEGISLATION 
(2)  Public  Authorities 

Here  the  issue  is  between  the  amount  of  discretion,  or 
power  to  enforce  one's  own  opinion,  allotted  to  the  execu- 
tive, legislative,  and  judicial  branches  of  government.  Shall 
the  legislature  or  Congress  use  its  sovereign  power  to  the 
extreme  limit  of  equalizing  fortunes  and  giving  labor  a  high 
preference  over  capital,  or  shall  it  be  restricted  to  narrower 
limits?  In  other  words,  can  the  legislature,  under  whatever 
power  of  taxation,  commerce,  or  police,  put  into  force  its  own 
notions  of  "general  welfare"  and  "social  expediency,"  or 
must  it  be  limited  to  the  notions  held  by  the  courts? 

In  monarchical  countries,  or  countries  whose  executives  in- 
herit monarchical  powers,  executive  discretion  still  remains  to 
the  monarch,  or  president,  or  the  executive  council,1  after  legis- 
lative powers  have  been  taken  away  by  Parliament.  This 
power  of  discretion  is  the  executive's  power  to  decide  when  and 
where  a  law  applies,  and  to  issue  rules,  regulations,  ordinances, 
or  orders  which  have  the  effect  of  law,  which  are  needed  to  en- 
force the  law,  or  even  are  thought  by  the  executive  necessary 
to  fill  any  gaps  which  Parliament  has  left  in  the  scheme  of 
laws.  Indeed,  in  enforcing  a  law,  every  executive  officer  must 
exercise  some  discretion,  which  he  does  as  his  own  opinion 
directs.  Discretion  is  the  power  to  act  without  interference 
according  to  one's  own  opinions,  or  policy,  or  theory  of  things. , 
It  is  not  supposed  to  be  capricious  or  changeable.  It  is  power) 
to  adopt  and  follow  a  policy,  not  power  to  be  arbitrary  and; 
unreasonable.  Even  a  policeman  must  make  up  his  mind 
whether  a  man  is  drunk  or  not,  before  applying  the  law  against* 
public  intoxication.  Policemen  may  differ  in  their  opinions 
on  this  matter,  even  though  the  facts  do  not  differ,  and  their 
differences  are  the  little  germs  of  what,  in  the  case  of  a  mayor, 
governor,  president,  or  king,  would  be  called  executive  policy, 
or  executive  discretion. 

Under  the  theory  of  our  constitution,  however,  the  execu- 
tive officers  have  no  discretion  to  follow  a  policy  of  their  own. 
The  legislature  is  the  policy-making  branch  of  government. 
It  has  discretion;  it  can  put  its  opinions  into  effect;  it  can 


1  Switzerland. 


THE   BASIS  OF  LABOR  LAW  19 

adopt  a  policy,  because  it  is  supposed  to  represent  all  inter- 
ests in  society  and  to  know  all  the  facts.  The  effort  is  there- 
fore made  in  our  country  to  limit  the  executive  discretion  as 
narrowly  as  possible,  in  order  that  it  may  be  said  that  the 
executive  merely  enforces  the  law  as  he  finds  it.  To  do  other- 
wise would  be  to  delegate  legislative  power  to  an  authority 
that  is  not  legislative  under  the  constitution. 

But  with  us,  not  even  the  legislature  is  the  supreme  legis- 
lative power.  The  written  constitutions  are  the  fundamental 
laws,  enacted  directly  by  the  people  themselves.  Being  laws, 
they  also  express  a  policy,  based  on  the  opinion  of  the  people 
who  adopted  them.  And  their  policy  must  prevail  against 
the  legislative  discretion.  The  policy  of  the  constitutions  is 
extremely  individualistic.  It  asserts  inalienable  and  natural 
rights  of  individuals  against  all  others  and  against  the  state 
itself.  When  a  policy  of  the  legislature  set  forth  in  a  statute 
comes  into  conflict  with  this  individualistic  policy  of  the 
constitutions,  some  one  must  be  called  upon  to  decide  which 
shall  prevail.  The  supreme  courts,  at  first  with  hesitation, 
but  afterward  with  assurance,  have  made  these  decisions.  If 
a  statute  of  the  legislature  fixing  the  hours  of  labor  conflicts 
with  the  constitution,  the  courts  merely  refuse  to  enforce  it — 
they  enforce  the  constitution  itself.  They  declare  the  law 
' '  unconstitutional. ' ' 1 : 

But  there  is  a  principle  of  our  courts  to  the  effect  that  a 
law  is  not  unconstitutional  if  a  way  can  be  found  to  sustain 
it.  Hence,  if  there  is  an  apparent  conflict  between  the  con- 
stitution and  the  attempt  of  the  legislature  to  abridge  private 
rights,  and  if  the  court  cannot  support  the  legislature  under 
the  other  limited  justifications  of  taxation,  guardianship, 
proprietorship,  eminent  domain,  or  protection  of  person  and 
property,  it  may  see  its  way  to  support  it  under  the  elastic 
justification  of  the  police  power.  Thus  the  police  power  in 
America  may  be  looked  upon  as  the  courts'  justification  for 
gradually  amending  the  constitution  by  interpretation  so  that  it 
may  conform  to  the  new  objects  and  new  restrictions  on  prop- 


^or  history  of  laws  declared  unconstitutional  see  Moore,  ''The 
Supreme  Court  and  Unconstitutional  Legislation,"  Columbia  Uni- 
versity Studies  in  History,  Economics,  and  Public  Law,  Vol.  LIV,  1913, 
No.  2. 


20         PRINCIPLES   OF  LABOR   LEGISLATION 

erty  which  the  legislature  deems  important.  A  similar  justi- 
fication and  gradual  amending  of  the  constitution  takes  place 
when  the  court  permits  Congress  to  extend  the  taxing  power 
or  the  commerce  power  to  the  regulation  of  rates,  services, 
wages,  hours  of  labor,  safety,  health,  and  compensation  for 
accidents. 

This  distinction  between  discretion  on  the  part  of  the  legis- 
lature and  interpretation  on  the  part  of  the  courts  is  a  dis- 
tinction not  so  much  between  the  several  powers  of  govern- 
ment as  between  the  functions  peculiar  to  the  several  branches 
of  government.  It  leads  us  to  distinguish  the  public  authori- 
ties who  share  in  the  exercise  of  the  public  powers. 

Government  can  interpret  and  exercise  its  powers  only 
through  individuals.  Each  of  these  individuals  takes  an  oath 
appropriate  to  his  office,  agreeing  to  support  the  constitution, 
to  execute  the  law,  to  maintain  order.  For  the  time  being 
his  acts  are  the  acts  of  the  state,  provided  he  keeps  within  the 
authority  granted  to  him.  To  the  legislature  is  granted  the 
authority  of  deciding  on  public  policy  for  the  future,  and,  in 
doing  so,  it  exercises  discretion.  To  the  courts  belongs  the 
power  of  deciding  particular  cases  as  they  arise,  and  in  doing 
so  they  interpret  the  laws.  The  executive  enforces  the  law. 
But,  to  a  fourth  and  new  branch  of  government,  unrecognized 
in  the  original  constitutions,  which  may  be  called  the  adminis- 
tration,1 is  coming  to  be  assigned  the  function  of  investigation 
of  those  economic  and  social  conditions  upon  which  the  several 
branches  of  government  base  their  decisions.  While  these 
functions  cannot  be  separated  in  practice,  yet  they  stand  out 
as  characteristic  of  each  branch  of  government.  Execution, 
discretion,  interpretation,  and  investigation  are  the  four  great 
divisions  in  the  functions  of  officials,  and  the  executive,  the 
legislature,  the  judiciary  and  the  administration  are  the  four 
branches  that  are  specialized  for  these  functions. 

a.  The  Executive.  The  executive  authorities  are  entitled  to 
use  violence  if  necessary,  and  to  deprive  individuals  of  life, 
liberty,  and  property  without  their  consent.  Private  individ- 
uals may  not  even  resist  an  officer  of  the  law.  The  army, 


lDie  Verwaltung.  The  term  "administration"  has  been  used  by  the 
Supreme  Court  in  this  sense,  224  U.  S.  474  (1911);  230  U.  S.  196,  274 
(1912). 


THE   BASIS   OF   LABOR   LAW  21 

navy,  and  militia  may  be  called  upon  by  the  governor  or  pres- 
ident in  time  of  strike  or  riot.  Sheriffs,  marshals,  their 
deputies  and  policemen,  may  arrest  and  imprison  individuals 
in  order  to  prevent  violence  and  to  execute  the  orders  of  the 
court  in  the  administration  of  civil  and  criminal  justice.  They 
belong  to  the  military  or  ''police"  force  of  the  state,  which, 
under  our  theory,  is  subordinate  to  the  civil  authorities.  The 
police  force,  as  already  stated,  differs  from  the  police  power, 
in  that  the  police  power  is  the  authorization,  or  justification, 
under  which  civil  authorities  are  entitled  to  exercise  discre- 
tion in  enacting  laws  and  issuing  orders,  while  the  police  force 
is  the  agency  which  exercises  coercion  as  directed  by  these 
laws  and  orders. 

While  in  law  the  military  and  police  forces  have  no  dis- 
cretion, but  must  follow  orders,  yet,  in  the  urgency  of  im- 
mediate action,  they  must  exercise  discretion  before  their  acts 
can  be  passed  upon  by  the  civil  authorities.  Only  in  case  of 
war  can  executives  legally  set  aside  the  superior  authority  of 
the  courts,  but  war  can  be  declared  only  by  the  legislature,  a 
civil  authority.1  The  arbitrary  discretion  of  the  executive  is 
sought  to  be  held  in  check  by  that  greatest  instrument  of 
freedom,  the  writ  of  habeas  corpus.  By  means  of  this  writ  the 
court,  a  civil  authority,  orders  the  executive,  or  military  power, 
to  bring  out  a  prisoner  for  hearing  and  for  release  if  wrongly 
imprisoned.  If  the  executive  refuses,  then  the  civil  authority 
ipso  facto  becomes  subordinate  to  military  force.  In  so  far 
as  the  executives  and  the  military  and  police  authorities  exer- 
cise discretion,  their  opinion  of  the  rights  and  duties  of  em- 
ployer and  employee  is  sometimes  the  deciding  factor  one 
way  or  the  other  in  determining  the  relative  power  of  the 
two  in  the  wage  bargain  as  affected  by  strikes,  lockouts,  pub- 
lic assembly,  public  speaking,  agitation,  arrest  of  leaders, 
protection  of  strike-breakers,  picketing,  the  use  of  the  streets, 
and  otherwise. 

b.  The  Legislature.  The  legislature  is  the  authority  which, 
acting  within  limits,  is  entitled  to  exercise  discretion  in  de- 


has  apparently  been  denied  by  the  Supreme  Court  of  West 
Virginia,  which  sustained  the  acts  of  a  "military  commission"  in  sen- 
tencing strikers  to  prison,  State  ex  rcl.  Mays  v.  Brown,  71  W.  Va.  519, 
77  S.  E.  243  (1912);  ex  parle  Jones,  71  W.  Va.  567,  77  S.  E.  1029  (1913). 


22         PRINCIPLES   OF  LABOR   LEGISLATION 

upon   public,  policy  and  enacting  laws  to  carry  the 


policy  into  effect.  It  is  the  one  branch  of  government  where 
the  representatives  of  conflicting  opinions  are  entitled  to  ex- 
press their  joint  opinion  in  the  form  of  law  that  shall  be  en- 
forced on  all  persons  with  or  without  their  consent.  Other 
branches  of  government  are  considered  to  be  impartial  and 
limited  to  the  execution  of  the  law  as  the  legislature  prescribes. 
But  the  legislature  may  be  partisan  in  politics  and  partial 
between  employers  and  employees.  It  is  considered  that,  if 
partisans  meet  and  discuss  in  an  orderly  way  their  points  of 
antagonism,  the  outcome  will  be  a  compromise  in  which  the 
arbitrary  power  of  no  individual  or  class  will  dominate  others. 
Yet,  in  fear  that  the  legislature  may  not  act  justly,  and  may 
override  minorities  or  those  not  represented,  the  people  have 
enacted  the  higher  law  known  as  the  constitution,  with  its 
bill  of  rights  and  its  limitations  on  the  legislature.  This  leads 
to  the  judiciary. 

c.  The  Judiciary.  Under  our  constitutional  system  the 
judicial  branch  holds  a  high  and  unique  position.  In  order 
that  it  may  be  removed  from  the  heat  of  partisanship  and 
partiality  it  is  made  independent  of  the  executive  and  legis- 
lative branches.  In  order  that  the  federal  system  of  a  cen- 
tral government  and  forty-eight  state  governments,  each  su- 
preme in  its  own  field,  may  operate  in  harmony,  the  federal 
court  is  made  the  final  authority  to  determine  how  far  the 
field  of  each  extends.  By  the  fourteenth  amendment  to  the 
constitution,  all  persons  born  or  naturalized  in  this  country 
enjoy  a  double  citizenship  —  that  of  the  United  States  and  of 
the  state  wherein  they  reside.  By  this  amendment  the  federal 
courts  have  authority  to  prevent  any  state  from  abridging 
the  rights  which  the  federal  constitution  and  law^s  grant  to 
them  as  citizens  of  the  United  States,  and  to  prevent  any 
state  from  depriving  any  person  of  life,  liberty,  or  property 
without  due  process  of  law.  The  federal  courts  interpret  and 
apply  treaties  with  foreign  nations  and  protect  the  rights  of 
aliens.  Finally,  since  the  acts  of  the  federal  Congress  or  ex- 
ecutive may  conflict  with  the  constitution,  the  federal  court 
may  declare  them  unconstitutional  and  hence  refuse  to  apply 
them,  in  order  to  protect  the  constitution. 

In  this  many-sided  jurisdiction  over  states,  over  Congress, 


THE   BASIS   OF  LABOR   LAW  23 

over  the  executive,  over  inferior  courts,  and  over  private 
citizens,  and  in  the  interpretation  of  these  many  laws,  the 
Supreme  Court  of  the  United  States  exercises  authority  not 
only  judicial,  but  also,  in  fact,  legislative  and  executive.  So 
with  the  supreme  courts  of  the  states  within  their  proper 
jurisdictions.  When  deciding  between  a  law  of  the  legisla- 
ture and  the  law  of  the  constitution,  they  necessarily  decide 
between  the  policy  of  the  legislature  and  their  own  opinion, 
based  on  previous  decisions,  of  the  policy  contained  in  the 
constitution.  When  nullifying  an  act  of  the  executive  they 
interpose  their  opinion  of  the  law  and  the  constitution  against 
the  executive's  opinion.  Yet  they  are  but  performing  the 
judicial  function  of  interpreting  the  laws  and  making  their 
application  to  the  facts  of  each  particular  case,  as  it  arises. 
Their  legislative  and  executive  functions  arise  because  they 
have  authority  to  apply  their  interpretation  to  cases  in  which 
the  acts  of  legislatures  and  executives  are  called  in  question, 
as  well  as  cases  where  only  private  citizens  are  the  litigants. 
In  this  way  is  established,  as  the  court  has  said,  "a  govern- 
ment of  laws  and  not  of  men."1 

But  the  courts,  just  as  legislatures  and  executives,  are  com- 
posed of  men.  They,  too,  are  guided  by  opinions,  and  their 
opinions  change  with  change  in  experience  and  change  in 
judges.  The  difference  consists  in  the  procedure,  the  stand- 
ards, and  the  safeguards  by  which  the  judges  arrive  at  their 
opinions,  compared  with  those  which  restrain  the  more  hasty 
opinions  of  lawmakers  and  executives.  It  is  merely  "opin- 
ions," after  all,  rather  than  written  constitutions,  that  pro- 
tect, enlarge,  and  abridge  rights  and  duties. 

d.  The  Administration.  But  opinions  of  individuals  are  so 
capricious,  fluctuating,  and  uncertain,  so  liable  to  be  bent  by 
bias,  passion,  and  interest,  that  our  constitutional  system  of 
government  imposes  methods  and  principles  designed  to  re- 
duce them  to  an  orderly  system  based  on  reason.  These 
methods  are  investigation  or  the  accurate  discovery  of  facts 
and  conditions,  and  in  more  recent  times  the  administrative 
branch  of  government  has  been  devised  with  investigation  as 
its  main  purpose.  Investigation  is  so  involved  in  all  the 


1Marbury  v.  Madison,  I  Cranch  137,  at  p.  163  Ci8o3). 


24         PRINCIPLES  OF   LABOR   LEGISLATION 

topics  of  labor  legislation  that  the  treatment  of  administra- 
tion is  reserved  for  the  concluding  chapter. 


(j)  Principles 

The  other  essential  to  an  orderly  system  of  reason  in  place 
of  capricious  opinion  is  the  principles,  standards,  or  "maxims" 
that  underlie  due  process  of  law.  Under  the  theory  of  our 
courts,  the  principles  of  law  and  justice  are  immutable  and 
unchanging.  Facts  and  conditions  change,  and  these  are  re- 
vealed by  investigation,  but  the  principles  remain  the  same, 
though  their  application  changes  when  the  facts  change.  The 
leading  principles  that  concern  us  are  "public  benefit"  and 
"equal  protection  of  the  laws." 

a.  Public  Benefit.  The  effect  and  purpose  of  the  police 
power  is  to  impose  a  duty  on  some  individual  which  redounds 
to  the  benefit  of  other  individuals.1  In  despotic  or  oligarchic 
governments  these  benefited  individuals  are  likely  to  be  the 
favorites  and  courtiers  of  the  monarch  or  the  privileged  and 
aristocratic  classes.  In  a  democratic  or  republican  govern- 
ment they  are  likely  to  be  political  partisans,  monied  interestst 
employers'  organizations,  trade  unions,  or  other  classes  who 
get  control  of  the  legislature  and  enact  laws  merely  for  the 
benefit  of  their  private  interest  at  the  expense  of  other  private 
interests.  But  if  a  thing  of  this  kind  happens,  then  the  legis- 
lature is  doing  the  very  thing  which  revolutions  and  written 
constitutions  were  designed  to  prevent  when  despots  and 
aristocrats  were  the  offenders.  Hence  it  is  that  every  act 
of  the  legislature  must  be  tested  by  a  standard  which  shall 
determine  whether  the  persons  or  classes  of  persons  to  be 
benefited  are  so  benefited  merely  because  they  have  power  in 
the  legislature  to  impose  burdens  on  others,  or  because  the 
benefit  to  them  is  also  a  benefit  to  that  body  of  the  whole 
people  which  we  call  "the  public."  If  the  benefit  goes  only  to 
private  persons  for  their  private  benefit,  then  the  legislation 
is  unconstitutional,  because  it  employs  the  sovereign  power  of 
government  for  private  purposes.  But  if  those  persons  who 


1  See  "The  Police  Power/'  p.  13. 


THE   BASIS   OF   LABOR   LAW  25 

are  benefited  are  either  the  entire  population  or  such  a  sig- 
nificant part  of  the  population  that  their  benefit  is  also  a 
public  benefit,  then  the  powers  of  government  are  put  to 
their  proper  use  of  performing  a  public  purpose.1 

Thus  we  have  a  series  of  terms  closely  related  or  synony- 
mous, all  of  them  implying  public  benefit,  such  as  public  utility, 
publicjnterest,  public  use,  public  value,  public  service,  pub- 
lic welfare,  public  purpose.  These  indicate  the  most  funda- 
mental principle,  standard,  or  maxim,  which  measures  or  limits 
the  extent  to  which  the  legislature  my  go  in  exercising  its 
police  power. 

But  public  benefit  is  not  something  fixed  and  unchangeable. 
The  police  power  particularly  is  that  justification  by  which 
the  definition  of  public  benefit  may  be  changed  or  enlarged 
as  time  goes  on.  In  the  final  analysis  this  enlargement  of  the 
definition  of  public  benefit  is  merely  an  enlargement  of  the 
court's  opinion  as  to  what  constitutes  a  public  purpose.  But, 
behind  the  change  in  the  court's  opinion  is  the  change  in 
conditions  and  the  change  in  public  opinion.  Among  the 
changes  in  conditions  which  lead  to  changes  in  opinion  are 
those  industrial  changes  already  mentioned,  such  as  the  change 
from  free  land  to  closed  land,  the  changes  in  transportation 
and  mobility  of  labor,  the  development  of  large-scale  indus- 
try, all  of  them  throwing  large  masses  of  labor  together  into 
active  competition.  The  increasing  congestion  of  population, 
whether  in  towns  or  factories,  has  brought  a  change  of  opinion 
as  to  the  need  of  extending  the  police  power  in  matters  of 
health,  safety,  and  morals. 

Accompanying  these  changes  in  outward  conditions  may  be 
noted  significant  changes  in  public  opinion  and  court  opinion 
regarding  labor.  In  the  colonial  or  agricultural  stage  of  in- 
dustry the  man  without  property  was  looked  upon  as  partly 
shiftless,  partly  vagabond,  partly  criminal,  and  the  opinion  of 
the  time  supported  many  kinds  of  coercive  laws  by  which 
both  adults  and  children  might  be  captured  or  enslaved  or 
otherwise  compelled  to  work.  In  this  way  it  was  considered 
that  propertyless  laborers  would  be  trained  in  the  habits  of 


term  "public  purpose"  is  usually  limited  to  taxation  and 
eminent  domain,  but  in  this  book  it  is  also  applied  to  other  powers, 
especially  the  police  power. 


PRINCIPLES   OF  LABOR   LEGISLATION 

lustry  and  thrift  by  which  they  could  rise  to  the  position 
of  proprietor  and  could  share  in  the  rights  and  civilization  of 
their  superiors. 

A  citizenship  stage  followed,  beginning  in  the  decade  of 
1820,  when  the  property  less  man  was  granted  the  suffrage. 
This  produced  at  once  a  revolutionary  change  in  the  atti- 
tude of  labor  toward  itself,  shown  in  the  first  series  of  strikes 
on  a  large  scale  for  reduction  of  hours  of  labor  with  the  demand 
for  more  leisure  for  the  duties  of  citizenship  as  well  as  the 
demand  for  free  schools,  for  the  abolition  of  imprisonment 
for  debt,  of  indentured  service,  and  other  remnants  of  the 
servile  stage. 

Immediately  following  this  period  and  the  failure  of  ag- 
gressive methods,  after  the  panic  of  1837,  came  what  may  be 
called  the  humanitarian  period.  Labor,  for  the  time  being, 
lost  its  power  of  attack  and  became  incapable  of  self-help. 
So  the  long  period  of  unemployment,  until  the  gold  discoveries 
of  1849,  produced  a  class  of  eminent  men  in  sympathy  with 
labor,  and  brought  about  the  beginning  of  legislation  abolish- 
ing imprisonment  for  debt,  providing  wage  and  homestead 
exemptions,  free  schools,  protective  tariffs  against  foreign 
pauper  competition,  and  generally  removing  the  opinions  of 
servility,  dissoluteness,  and  criminality  theretofore  held  re- 
garding propertyless  labor.  This  remarkable  period  cul- 
minated in  the  Civil  War,  which  freed  the  slaves.  It  was 
accompanied  by  similar  movements  in  Europe,  and  altogether 
was  nothing  less  than  a  revolution  in  public  opinion  regard- 
ing labor.1 

With  the  decade  of  the  'sixties  began  again  an  aggressive 
movement  of  labor,  headed  in  Europe  by  the  International 
Workingmen's  Association,  which  later  split  into  socialism, 
anarchism,  and  trade-unionism,  and  in  the  United  States  by 
the  National  Labor  Union,  which  finally  split  into  green- 
backism,  socialism,  and  trade-unionism.  This  period,  ex- 
tending into  the  twentieth  century,  may  properly  be  char- 
acterized as  a  period  of  class  struggle,  in  which  new  and 
enormous  fortunes  derived  from  industry  were  pitted  against 
unprecedented  organizations  of  labor  in  many  deadly  strug- 

1  See  Chapters  II,  "Individual  Bargaining,"  and  III,  "Collective  Bar- 
gaining." 


THE  BASIS  OF  LABOR  LAW  27 

gles,  and  in  which  legislatures  responded  to  the  demands  of 
labor  for  legislation,  and  the  courts  responded  to  the  demands 
of  capital  by  declaring  such  laws  " class  legislation"  and  there- 
fore unconstitutional. 

This  period,  to  a  considerable  extent,  continues  to  the  pres- 
ent time,  but  the  beginning  ojLanother,  which  may  be  called 
the  public  benefit  period  of  labor  legislation,  dates  from  1898, 
when  the  Supreme  Court  decided  the  case  of  Holden  v.  Hardy.1 
Hitherto  the  police  power  was  recognized  mainly  as  an  au- 
thority to  enforce  protective  restrictions  against  producers 
in  behalf  of  consumers.  This  decision  affirmed  the  power  to 
enforce  such  restrictions  on  employers  and  consumers  in 
behalf  of  producers.  In  other  words,  whereas  formerly,  for 
the  most  part,  the  health  of  consumers,  but  not  the  health  of 
producers,  was  a  public  benefit,  now  the  health  of  the  laborer 
as  a  producer  is  considered  to  be  as  much  a  public  benefit  as 
the  health  of  the  consumer  of  his  product.  If  this  be  so,  then 
the  liberty  of  both  the  employer  and  the  employee  to  make  a 
labor  contract  may  be  restricted  and  regulated,  if  it  is  found 
that  the  contract  is  injurious  to  the  laborer.  The  protection 
of  labor  becomes  a  public  purpose.2 

In  the  Holden  v.  Hardy  case  the  court  also  stated  the  prin- 
ciples on  which  the  powers  of  government  are  enlarged  as 
conditions  change  and  new  facts  are  brought  to  the  attention 
of  the  court  through  investigation:  "This  court  has  not  failed 
to  recognize  the  fact  that  the  law  is,  to  a  certain  extent,  a 
progressive  science;  that  in" some  of  the  states  methods  of 
procedure  which,  at  the  time  the  constitution  was  adopted, 
were  deemed  essential  to  the  protection  and  safety  of  the 
people,  or  to  the  liberty  of  the  citizen,  have  been  found 
to  be  no  longer  necessary;  that  restrictions  which  had  for- 
merly been  laid  upon  the  conduct  of  individuals,  or  of  classes 
of  individuals,  have  proved  detrimental  to  their  interests, 
while,  upon  the  other  hand,  certain  other  classes  of  persons 


1  169  U.  S.  366,  1 8  Sup.  Ct.  383  (1898).     The  decision  affirmed  the  con- 
stitutionality of  legislation  reducing  the  hours  of  labor  of  men  who  work 
in  smelters  and  underground. 

2  This  was,  of  course,  not  the  first  time  that  this  doctrine  was  as- 
serted.    Indeed,  it  was  implied  whenever  a  court  sustained  a  law  pro- 
tecting labor.     But  it  was  the  first  broad  statement  by  the  highest 
court  in  such  a  way  as  to  make  it  "the  law  of  the  land." 


28         PRINCIPLES  OF  LABOR   LEGISLATION 

(particularly  those  engaged  in  dangerous  or  unhealthful  em- 
ployments) have  been  found  to  be  in  need  of  additional  pro- 
tection. ...  It  is  impossible  to  forecast  the  character  or  ex- 
tent of  these  changes;  but  in  view  of  the  fact  that,  from 
the  day  Magna  Charta  was  signed  to  the  present  moment, 
amendments  to  the  structure  of  the  law  have  been  made  with 
increasing  frequency,  it  is  impossible  to  suppose  that  they  will 
not  continue,  and  the  law  be  forced  to  adapt  itself  to  new 
conditions  of  society,  and  particularly  to  the  new  relations 
between  employers  and  employees,  as  they  arise."1  Two 
state  courts  have  said,  "While  the  principles  of  justice  are 
immutable,  changing  conditions  of  society  and  the  evolution 
of  employment  make  a  change  in  the  application  of  principles 
absolutely  necessary  to  an  intelligent  administration  of 
government."2 

Finally  a  justice  of  the  Supreme  Court,  in  1911,  is  able  to 
identify  a  public  benefit  with  public  opinion  regarding  not 
only  the  health  of  a  class  of  producers,  but  also  regarding  the 
welfare  of  any  class  of  people,  and  to  declare  that  the  police 
power  is  shaped  "by  the  prevailing  morality  or  the  strong  and 
preponderant  opinion"  as  to  what  is  "greatly  and  immedi- 
ately necessary  to  the  public  welfare."3 

b.  Equal  Protection  of  tJie  Laws.  Another  respect  in  which 
the  case  of  Holden  v.  Hardy  is  the  headlight  of  a  new  period 
is  found  in  its  opinion  regarding  the  inequality  of  bar^aininp 
power  of  employer  and  employee.  The  opinion  declared  that 
a  law,  such  as  the  one  then  before  the  court,  limiting  the  work- 
ing hours  of  men,  was  not  class  legislation  and  therefore  did 
not  conflict  with  the  constitution  which  guarantees  to  each 
individual  the  equal  protection  of  the  laws.  The  reason  is, 

1  Holden  v.  Hardy,  169  U.  S.  366,  at  pp.  385-387  (1898). 

2  Ritchie  v.  Wayman,  244  II!.,  509,  91  N.  E.  695  (1910);   quoted  with 
approval  from  Washington  v.  Buchanan,  59  L.  R.  A.  342  (1902). 

3  Xoble  State  Bank  v.  Haskell,  219  U.  S.  104.  31  Sup.  Ct.  186  (1911). 
Also  contrary  opinion  in  Ives  v.  South  Buffalo  R.R.  Co.,  201  X.  Y.  271,  94 
N.  E.  431  (1911),  at  p.  448,  where  the  highest  court  of  New  York  said 
in  part:    "As  to  the  cases  of  Noble  State  Bank  v.  Haskell  and  Assaria 
State  Bank  v.  Dolly,  we  have  only  to  say  that  if  they  go  so  far  as  to 
hold  that  any  law,  whatever  its  effect,  may  be  upheld  because  by  the 
'prevailing  morality'  or  the   'strong  and  preponderant  opinion ''it  is 
deemed  'to  be  greatly  and  immediately  necessary  to  the  public  welfare,' 
we  cannot  recognize  them  as  controlling  of  our  construction  of  our  own 
constitution." 


THE   BASIS  OF  LABOR  LAW  29 

as  declared  by  the  court,  that  the  employers  and  their  laborers 
do  not  stand  upon  an  equality;  that  "the  proprietors  lay  down 
the  rules  and  the  operatives  are  practically  constrained  to 
obey  them";  thatj'the  latter  are  often  induced  by  the  fear 
of  discharge  to  conform  to  regulations  which  their  judgment, 
fairly  exercised,  would  pronounce  to  be  detrimental  to  their 
health  and  strength,"  and  that,  even  though  "both  parties 
are  of  full  age  and  competent  to  contract,"  yet  the  legislature 
may  interfere  "where  the  parties  do  not  stand  upon  an 
equality,  or  where  the  public  health  demands  that  one  party 
to  the  contract  shall  be  protected  against  himself."  l 

In  this  opinion  the  court  recognized,  what  had  been  dimly 
seen  or  implied  from  the  beginning  of  labor  legislation,  that 
inequality  of  bargaining  power  is  a  justification  under  which 
the  state  may  come  to  the  protection  of  the  weaker  party  to 
the  bargain.  In  earlier  periods  the  courts  had  often  held  that 
capital  and  labor  were  equal,  that  laws  favoring  labor  against 
capital  were  class  legislation,  and,  even  where  certain  courts 
held  otherwise,  the  law  books  severely  criticized  them  as 
yielding  to  the  pressure  of  politics  instead  of  bravely  stand- 
ing by  the  constitution.2  But  inequality  of  bargaining  power 
has  long  been  a  ground  for  legislative  and  judicial  protection 
of  the  weaker  party,  even  though  the  courts  found  other 
grounds  on  which  to  base  their  opinions.  It  was  early  con- 
ceded as  a  justification  of  usury  laws,  protecting  the  weak 
debtor  against  the  strong  creditor;  latterly  of  public  utility 
laws,  protecting  the  weak  consumer  against  the  powerful  cor- 
poration; and  now  it  only  needs  a  recognition  of  facts  to 
justify  labor  legislation  protecting  the  weak  wage-earner 
against  the  more  powerful  capitalist.  Such  legislation  could 

1A  similar  opinion  had  been  stated  in  1892  by  a  state  court  (Peel 
Splint  Coal  Co.  v.  State,  36  W.  Va.  802,  15  S.  E.  1000  (1892),  at  p.  1009: 
"When  a  few  persons  are  engaged  in  an  extensive  business  and  they 
have  a  multitude  of  customers  or  dependent  employees  and  it  appears 
that  the  business  is  of  such  a  character  that  the  parties  do  not  deal 
upon  an  equal  footing  and  that  the  many  are  at  a  disadvantage  in 
their  contractual  relations  with  the  few,  the  legislature  may  regulate 
these  relations,  with  a  view  to  prevent  fraud,  oppression,  or  undue  ad- 
vantage." See  also  State  v.  Brown  &  Sharpe  Manufacturing  Co., 
18  R.  I.  16,  25  Atl.  246  (1892);  Avent  Beattyville  Coal  Co.  v.  Common- 
wealth, 96  Ky.  218,  28  S.  W.  502  (1894). 

2  Eddy,  Law  of  Combinations,  1901,  Vol.  I,  pp.  245-247,  277;  Vol.  II, 
p.  1023. 


30         PRINCIPLES  OF  LABOR   LEGISLATION 

be  held  to  deny  equal  protection  of  the  laws  only  where  the 
facts  showed  that  both  parties  were  actually  equal.  But 
where  the  parties  are  unequal  (and  a  public  purpose  is  shown),1 
then  the  state  which  refuses  to  redress  the  inequality  is 
actually  denying  to  the  weaker  party  the  equal  protection 
of  the  laws. 

It  is  by  recognizing  this  inequality  of  bargaining  power, 
coupled  with  a  public  purpose,  that  the  courts  pass  over,  in 
any  particular  case,  from  the  theory  of  class  legislation  to  the 
theory  of  reasonable  classification.  The  two  are  identical  in 
one  respect;  all  classification  is  class  legislation,  but  the  kind 
of  class  legislation  which  the  courts  condemn  is  that  which 
they  consider  to  be  "unreasonable  "  classification.  Class  legis- 
lation benefits  or  burdens  one  class  against  others  where  there 
is  no  real  inequality  or  no  public  benefit.  "Reasonable" 
classification  benefits  or  burdens  a  class  where  there  is  real 
inequality  to  be  overcome  and  a  public  benefit  to  be  attained.2 
That  which  is  class  legislation  at  one  time  may  become  rea- 
sonable classification  at  a  later  time,  if  the  court  perceives 
that  what  it  once  thought  was  equality  is  really  inequality, 
and  what  it  once  thought  was  merely  private  benefit  is  also 
public  benefit. 

Thus  the  history  of  the  constitutionality  of  labor  legislation 
in  the  United  States  has  been  a  history  of  the  tji 


cation.  The  conflicting  opinions  of  various  courts  on  the  ex- 
tent of  the  police  power  over  private  property  are  usually 
conflicting  opinions  on  the  equality  or  inequality  of  bargain- 
ing classes  and  on  the  public  or  private  purpose  subserved  by 
the  legislation.  In  proportion  as  certain  classes  of  la- 
borers, such  as  women  or  mine-workers,  are  recognized  by 
the  courts  as  suffering  an  injury,  and  in  proportion  as  the  in- 
jured persons  are  deemed  to  be  of  importance  to  the  public 
as  well  as  unable  to  protect  themselves,  then  legislation  re- 
quiring the  employer  to  remove  the  injury  and  prohibiting  the 

1  In  the  case  of  Coppage  v.  Kansas,  236  U.  S.  i,  35  Sup.  Ct.  240  (1915), 
the  Supreme  Court  denied  the  application  of  the  doctrine  of  inequality 
of  bargaining  power,  but  this  was  a  case  where  the  purpose  was  to  pro- 
tect trade  unions  against  disruption  by  employers.     What  the  court  in 
effect  decided  was  that  a  trade  union  performed  a  private  and  not  a  pub- 
lic purpose.     See  "The  Law  of  Conspiracy,"  p.  114. 

2  See  also  Freund,  Police  Power,  pp.  626-755. 


THE  BASIS   OF   LABOR  LAW  31 

laborer  from  even  voluntarily  consenting  to  the  injury  ceases 
to  be  overruled  as  "class  legislation"  and  begins  to  be  sus- 
tained as  "reasonable  classification."  Even  though  the  in- 
dividual liberty  of  both  employer  and  employee  to  make  so- 
called  voluntary  contracts  is  restricted  by  the  law,  yet  each 
continues  to  have  "equal  protection  of  the  laws"  because 
each  individual  is  treated  equally  with  all  other  individuals 
of  his  own  class.  The  bargaining  power  of  the  employee  is 
increased  while  that  of  the  employer  is  reduced,  yet  all  em- 
ployers in  a  given  class  are  treated  alike  and  all  employees 
in  their  class  are  similarly  treated  alike.1 

This  gradual  transition  from  the  time  when  labor  was 
treated  as  equal  to  capital  to  the  modern  time  when  labor  is 
given  privileges  superior  to  those  of  capital  may  be  described 
as  a  transition  from  the  law  of  master  and  servant  to  the  law 
of  employer  and  employee.  Prior  to  the  decade  of  the  'thirties 
the  laborer  could  be  imprisoned  for  debt.  In  other  words,  his 
creditor  had  rights  over  his  body,  which  was  looked  upon  as 
property  justly  belonging  to  the  creditor  as  was  the  laborer's 
other  property  sufficient  to  pay  the  debt.  This  reduced  the 
laborer  to  a  servile  state  while  pretending  that  he  was  equal 
and  free.  No  distinction  was  made  between  the  fraudulent 
debtor  and  the  unfortunate  debtor.  Now  the  laborer  is  not 
treated  as  a  criminal  unless  proved  to  be  so,  and  his  creditor 
consequently  has  no  remedy  which  reduces  the  laborer  to  the 
servile  state. 

Next,  in  the  decade  of  the  'forties,  the  law  went  further  and 
the  wage  exemption  laws  prevented  the  creditor  from  taking 
even  the  minimum  wages  of  the  laborer  in  payment  of  a  debt. 


1  This  principle  may  be  seen  in  the  workmen's  compensation  laws. 
Under  the  former  law  of  employers'  liability  the  laborer  carried  all  the 
expense  incurred  by  reason  of  the  risk  of  accident.  The  employer  had 
certain  defenses  by  which  he  could  throw  the  cost  of  accidents  on  the 
employee.  (See  "Rules  of  Employers'  Liability,"  p.  358.)  These  de- 
fenses were  held  to  be  property  rights,  because  they  were  valuable  to 
the  employer.  But  the  legislature  abolished  these  defenses  and  requires 
the  employer  to  compensate  all  laborers  for  all  disabling  accidents.  The 
employers  are  thus  compelled  to  pay  the  cost  of  insurance  against  all  of 
these  risks,  where  formerly  the  laborer  carried  the  insurance  as  best  he 
could.  In  this  way  the  employer's  increased  cost  of  insurance  may  be 
said,  so  far  as  the  law  is  concerned,  to  have  increased  the  bargaining 
power  of  the  employee  and  reduced  the  bargaining  power  of  the  employer 
or  of  the  consumer  to  the  same  extent. 


32         PRINCIPLES   OF   LABOR   LEGISLATION 

Finally,  the  thirteenth  amendment  to  the  constitution,  by 
prohibiting  involuntary  servitude  except  for  crime,  confirmed 
the  preceding  privileges  as  well  as  the  privilege  of  a  laborer 
even  to  break  his  contract  to  labor  without  being  forced  to 
"specific  performance."  In  these  respects  labor  has  been 
given  a  preference  over  capital,  in  that  while  both  the  em- 
ployer and  the  employee  can  bring  suits  for  damages  on 
account  of  breaking  a  contract,  the  employer's  suit  is  against 
the  laborer  whose  small  property  is  exempt  from  attachment, 
but  the  laborer's  suit  is  against  an  employer  whose  business 
property  as  such  has  no  exemption.1 

Other  laws  are  mentioned  in  the  following  chapters,  showing 
the  transition  from  the  master-servant  notion  of  law  to  the 
employer-employee  notion.  The  master  and  servant  law, 
while  pretending  to  treat  employer  and  employee  alike,  re- 
tained marks  of  that  servile  status  in  which  the  laborer's  body 
was  the  physical  property  of  employer  or  creditor.  But  the 
law  of  employer  and  employee,  as  it  develops,  not  only  grad- 
ually removes  those  vestiges  of  past  servitude,  when  the 
master  could  compel  the  servant  to  work,  but  also  gives  the 
latter  a  preference  over  capital  in  bargaining  and  a  privilege 
to  break  contracts  without  effective  penalty  which  the  em- 
ployer does  not  possess.  In  other  words,  the  natural ,  in- 
equality of  employer  and  employee  reduces  the  latter  to  a 
servile  state,  reinforced  by  the  law  of  master  and  servant, 
but  the  legislature,  by  giving  preference  to  the  weaker  party, 
overcomes  in  part  the  inequalities  of  nature  and  secures  a 
more  real  equality  protected  by  the  law  of  employer  and 
employee.2 

Thus  it  may  be  affirmed  that  the  equality  of  bargaining 
power  toward  which  the  law  of  employer  and  employee  is 
directed  is  a  principle  so  important  for  the  public  benefit  that 

1  Of  course,  the  bankrupt  employer  has  the  same  exemptions  as  the 
laborer. 

2  This  distinction  between  the  law  of  master  and  servant  and  that  of 
employer  and  employee  is  not  technically  correct.     The  law  books  in- 
clude both  under  "master  and  servant."     But  the  legislatures  have 
broken  away  from  these  terms.     In  recent  legislation  of  the  more  indus- 
trial states  the  terms  used  are  employer  and  employee.     This  goes  along 
with  popular  usage  and  serves  to  bring  out,  not  so  much  the  legal  form 
of  the  labor  contract,  as  the  underlying  purpose  of  equality  in  the  wage 
bargain. 


THE  BASIS  OF  LABOR  LAW        33 

it  becomes  in  itself  a  public  purpose.  Many  decisions  of  the 
courts  base  the  justification  of  the  police  power,  not  merely 
upon  the  protection  of  health,  safety,  and  morals,  but  squarely 
upon  strengthening  the  bargaining  power  of  laborers.  In  sus- 
taining a  law  requiring  wages  to  be  paid  in  cash,  the  Supreme 
Court  of  Tennessee  said:  "The  legislature  evidently  deemed 
the  laborer  at  some  disadvantage  under  existing  laws  and 
customs,  and  by  this  act  undertook  to  ameliorate  his  condi- 
tion in  some  manner  by  enabling  him,  ...  at  his  election  and 
at  a  proper  time,  to  demand  and  receive  his  unpaid  wages  in 
money  rather  than  in  something  less  valuable.  Its  tendency, 
though  slight  it  may  be,  is  to  place  the  employer  and  employee 
upon  equal  ground  in  the  matter  of  wages."  l  The  court  again 
approved  the  passage  in  Holden  v.  Hardy  bearing  on  bargain- 
ing equality. 

Upon  similar  grounds  was  upheld  as  constitutional  an 
Arkansas  law  forbidding  coal  operators  "from  using  screens 
or  other  devices  to  reduce  the  amount  of  wages  that  would 
be  due  on  the  basis  of.  weight  of  coal  actually  mined  and 
accepted  by  the  operator."  The  court  said:  "We  are  unable 
to  say,  in  the  light  of  the  conditions  shown  in  the  public  in- 
quiry referred  to,  and  in  the  necessity  for  such  laws,  evinced 
in  the  enactments  of  the  legislatures  of  various  states,  that 
this  law  had  no  reasonable  relation  to  the  protection  of  a  large 
class  of  laborers  in  the  receipt  of  their  just  dues  and  in  the 
promotion  of  the  harmonious  relations  of  capital  and  labor 
engaged  in  a  great  industry  in  the  state." 2 

The  court  argued  in  a  like  tenor  in  upholding  an  Iowa 
statute  denying  effect  to  any  contract  restricting  liability  or 
the  acceptance  of  any  insurance  benefits  as  a  defense  to  per- 
sonal injury  actions  brought  against  railroads  by  their  em- 
ployees. In  dealing  with  the  relation  of  employer  and  cm- 
ployed  the  court  held  that  "the  legislature  has  necessarily  a 
wide  field  of  discretion  in  order  that  there  may  be  suitable 
protection  of  health  and  safety,  and  that  peace  and  good  order 


1  Knoxville  Iron  Co.  v.  Harbison,  183  U.  S.  13,  22  Sup.  Ct.  I  (1901). 
For  cases  declaring  similar  laws  unconstitutional,  see  Freund,  Police 
Power,  pp.  305,  306. 

2  McLean  v.  Arkansas,  211  U.  S.  539,  at  p.  550,  29  Sup.  Ct.  206  (1909), 
reprinted  in  Hall,  Cases  on  Constitutional  Law,  1913,  p.  424. 

3 


34         PRINCIPLES  OF   LABOR   LEGISLATION 

may  be  promoted  through  regulations  designed  to  insure 
wholesome  conditions  of  work  and  freedom  from  oppression. 
What  differences  as  to  the  extent  of  this  power  may  exist  with 
respect  to  particular  employments  and  how  far  that  which 
may  be  authorized  as  to  one  department  of  activity  may  ap- 
pear to  be  arbitrary  in  another  must  be  determined  as  cases 
are  presented  for  decision.  But  it  is  well  established  that, 
so  far  as  its  regulations  are  valid,  not  being  arbitrary  or  un- 
related to  a  proper  purpose,  the  legislature  undoubtedly  may 
prevent  them  from  being  nullified  by  prohibiting  contracts 
which,  by  modifications  or  waiver,  would  alter  or  impair  the 
obligation  imposed."1  The  court  here  also  quotes  with  ap- 
proval the  passage  from  Holden  v.  Hardy  relating  to  inequality 
and  conflicting  interest. 

As  summarized  by  Ernst  Freund: 2  "Our  whole  economic 
system  is  based  upon  a  very  wide  liberty  of  dealing  and  con- 
tract, and  it  is  deemed  perfectly  legitimate  to  use  liberty  for 
the  purpose  of  securing  special  advantage  over  others.  The 
resulting  disparity  of  conditions  is  not,  on  the  whole,  regarded 
as  inconsistent  with  the  welfare  of  society.  Yet  a  different 
view  seems  to  be  taken  of  this  liberty  of  dealing,  where 
economic  superiority  is  used  to  dictate  oppressive  terms,  or 
where  a  degree  of  economic  power  is  aimed  at  that  is  liable 
to  result  in  such  oppression.  The  theory  of  legislative  inter- 
ference seems  to  be  in  some  cases  that  oppression  in  itself, 
like  fraud,  is  immoral  and  wrong  either  against  the  individ- 
ual affected  thereby  or  against  the  public  at  large;  in  other 
cases,  that  the  excessive  dependence  of  whole  classes  of  the 
community  threatens,  though  perhaps  only  remotely,  the 
social  fabric  with  grave  disturbance  or  ultimate  subversion 
and  ruin." 


1  Chicago,  Burlington  &  Quincy  R.  Co.  v.  McGuire,  219  U.  S.  549, 
at  p.  570,  31  Sup.  Ct.  259  (1911),  reprinted  in  Hall,  Cases  on  Constitutional 
Law,  p.  518.  2  Police  Power,  p.  285. 


CHAPTER    II 
INDIVIDUAL  BARGAINING 

In  the  broadest  sense  of  the  term  a  debt  is  that  which  is 
due  from  one  person  to  another,  whether  money,  goods,  or 
services.1  The  laborer  as  debtor  may,  therefore,  be  looked 
upon  as  owing  either  labor  or  money  to  another.  But  modern 
law  does  not  force  a  laborer  to  work  out  his  debt.  It  con- 
verts a  labor  debt  into  a  money  debt,  or  ''damages,"  and  en- 
forces payment  of  the  latter.  Furthermore,  under  "exemp- 
tion" laws,  the  law  does  not  always  enforce  even  the  total 
payment  of  a  money  debt. 

On  the  other  side,  the  laborer  is  a  creditor  to  the  extent 
that  the  employer  owes  him  money  for  his  labor.  Here,  too, 
modern  legislation  gives  him  certain  privileges  or  protection, 
not  usually  given  to  other  creditors. 

It  is  in  this  twofold  relation  of  debtor  and  creditor  that 
we  trace  the  history  of  labor  law  from  the  servile  stage,  through 
the  stage  of  master  and  servant,  to  the  modern  stage  of 
employer  and  employee. 


i.  THE  LABORER  AS  DEBTOR 

If  we  classify  the  legal  relations  of  the  laborer  as  debtor 
we  shall  begin  with  the  employment  of  labor  in  its  elementary 
form  of  slavery,  where  all  of  the  rights  were  on  the  side  of 
the  owner  and  all  the  obligations  on  that  of  the  laborer. 
This,  and  a  succeeding  or  contemporary  stage  of  serfdom, 
are  known  as  a  period  of  status.  The  laborer  is  born  to  the 


1Kimpton  v.  Bronson,  45  Barb.  625  (1866). 


36         PRINCIPLES  OF  LABOR  LEGISLATION 

position  and  does  not  enter  it  by  agreement  or  contract.  But 
status  often  merges  into  contract,  or  the  fiction  of  a  contract, 
and  we  may  therefore  speak  of  a  servility  stage,  or  a  stage 
of  servile  contracts,  preceding  that  of  free  contracts.  Here 
would  be  classified  slavery,  serfdom,  and  peonage.  These 
conditions  of  labor,  even  if  based  on  contract,  may  be  so 
evidently  the  outcome  of  coercion  that  they  may  rightly  be 
considered  as  belonging  to  a  pre-contract  or  servile  stage. 

A  second  stage,  which  we  may  designate  as  that  of  master 
and  servant,  emerges  gradually  from  the  more  liberal  forms  of 
servile  contracts,  although  retaining  vestiges  of  servile  rela- 
tions. Some  of  the  contracts  of  this  stage,  especially  the 
seaman's  contract,  have  continued  down  to  the  present  day, 
while  others,  such  as  apprenticeship,  indentured  service,  and 
contract  labor,  can  with  difficulty  be  distinguished  from  those 
of  the  servile  stage.  The  ameliorating  character  of  both  the 
servile  and  master  stage  is  that  of  paternalism,  and  both  of 
them  are  closely  connected  with  the  institution  of  the  family, 
in  which  the  wife  and  children  occupy  a  position  of  status, 
afterward  modified  by  contract,  express  or  implied. 

Modern  labor  legislation,  as  understood  in  this  book,  be- 
gins with  a  conscious  effort  on  the  part  of  the  legislature  to 
remove  both  the  servile  and  paternal  vestiges  of  the  master 
and  servant  stage  and  to  substitute  a  stage  of  real  equality, 
as  far  as  possible.  This  we  designate  as  the  employer  and 
employee  stage. 

(/)  Servile  Labor 

a.  Slavery.  The  worker  under  primitive  slavery  is  re- 
garded as  the  property  of  his  master.  In  Roman  law  a 
slave  was  regarded  not  as  a  person,  but  as  a  thing.1  In  1776 
Mr.  Justice  Chase  of  Maryland  said:  "Negroes  are  property, 
and  no  more  members  of  the  state  than  cattle." 

In  England,  in  1772,  it  was  held  by  the  court  that  slavery 
could  not  exist  in  the  mother  country.  The  slave  trade  was 
abolished  by  statute  there  in  1807,  and  in  the  colonies  in  1833. 

1  Sohm,  Institutes  of  Roman  Law,  tr.  Ledlie,  1901,  p.  171. 

2  Wilson,  History  of  the  Rise  and  Fall  of  the  Slave  Power  in  America, 
n.  d.,  Vol.  I,  p.  15. 


INDIVIDUAL  BARGAINING  37 

The  example  of  Great  Britain  in  regard  to  her  colonies  was 
gradually  followed  by  other  European  states,  by  France  in 
1848,  Portugal  in  1858,  Holland  in  1863.  Spanish- American 
states  abolished  slavery  after  securing  independence.  In  the 
United  States  the  slaves  were  freed  in  1865  by  the  thirteenth 
amendment  to  the  federal  constitution,  as  an  outcome  of  the 
Civil  War,  and  Brazil,  the  South  American  state  which  re- 
tained slavery  longest,  abolished  it  by  decree  of  the  Chambers 
in  1888. 

b.  Serfdom.     Slavery  aims  at  the  subjection  of  the  whole 
man.     Another   degree   of   unfreedom,    namely,    serfdom   or 
villeinage,   does  not  attempt  to  cover  the  entire  range  of 
human  life.     It  is  concerned  only  with  certain  relations,  gen- 
erally economic  in  character.     Compulsory  labor — compul- 
sion as  to  the  kind  of  service  and  the  time  and  place  where  it 
is  to  be  rendered — is  the  essential  note  of  serfdom  or  villeinage. 
A  serf  was  bound  to  the  land  and  bought  and  sold  with  it, 
like  cattle.     But  he  might  secure  freedom  by   "commuta- 
tion," that  is,  by  paying  to  the  lord  or  master  who  had  the 
title  to  the  soil  a  sum  of  money  or  an  annual  payment  pre- 
sumably equivalent  to  the  value  of  the  service  which  he 
rendered  his  lord.     He  substituted  a  money  debt  for  a  labor 
debt — in  other  words,  he  bought  his  freedom.     Serfdom  ap- 
pears as  a  corollary  of  feudalism.     It  grew  up  as  a  conse- 
quence of  customary  subjection  in  an  agricultural  system  and 
melted  away  with  the  advent  of  the  industrial  age. 

c.  Peonage.     Peonage  has   been   denned  as   a   "status  or 
condition  of  compulsory  service  based  upon  the  indebtedness 
of  the  peon  to  the  master."  l     The  basic  fact  is  indebtedness. 
In  Mexico,  after  the  Spanish  conquest,  slaves  were  used  in 
mines  and  on  roads,  while  serfs  or  peons  were  used  for  agri- 
culture.    The  condition  of  the  latter,  though  differing  little 
from   slavery,    was   theoretically   more   humane   and   right- 
respecting.     Together  with  peonage  a  system  of  large  estates 
grew  up.     The  peons  got  food  and  clothing  from  their  mas- 
ters.2    These  Mexican  peons  are  descendants  of  natives  en- 
slaved by  the  Spaniards,  and  are  often  merely  bondsmen.3 

1  Clyatt  v.  U.  S.,  197  U.  S.  207,  25  Sup.  Ct.  429  (1904). 

2  United  States  Bureau  of  Labor,  Bulletin  No.  38,  1902,  p.  23. 
8  W.  E.  Carson,  Mexico,  1914,  p.  185. 


38         PRINCIPLES  OF  LABOR  LEGISLATION 

Their  wages  are  low  and  they  are  compelled  to  deal  at  the 
store  of  the  estate.  They  are  always  kept  in  debt,  and  until 
the  Mexican  constitution  of  1917  abolished  involuntary  servi- 
tude except  as  a  punishment  for  crime,  an  Indian  workman 
owing  his  employer  became  the  property  of  the  latter.1  Some- 
times peons  are  induced  to  contract  for  work  to  be  done  in 
tropical  parts,  and  here  they  get  into  debt  at  once  and  are 
prevented  by  armed  guards  from  escaping.2 

In  the  United  States,  after  the  abolition  of  slavery  by 
the  thirteenth  amendment  in  1865  the  proprietors,  being  de- 
prived of  their  property  right  in  the  services  of  the  slave, 
sought  in  some  cases  to  effect  the  same  purpose  by  indirect 
means,  such  as  enforcing  indebtedness  and  compelling  the 
working  out  of  the  debt.  These  subterfuges  gave  added  im- 
petus to  the  agitation  which  led  to  the  adoption,  two  and  a 
half  years  later,  of  the  fourteenth  amendment,  which  created 
a  citizenship  of  the  United  States  in  addition  to  that  of  the 
state,  and  prohibited  any  state  from  depriving  a  citizen  of 
the  United  States  of  "life,  liberty,  or  property  without  due 
process  of  law,"  or  denying  "to  any  person  within  its  juris- 
diction the  equal  protection  of  the  laws."3 

In  1875  the  United  States  Congress  passed  statutes  which 
have  been  thought  to  enforce  the  meaning  of  the  thirteenth 
amendment.  That  they  do  not  entirely  accomplish  this  is 
pointed  out  by  the  Immigration  Commission  of  19 n.4  One 
statute  provides  heavy  fines  for  those  who  "conspire  to  in- 
jure, oppress,  threaten,  or  intimidate  any  citizen  in  the  free 
exercise  or  enjoyment  of  any  right  or  privilege  secured  him 
by  the  constitution  of  the  United  States";5  and  another  for 
"every  person  who  kidnaps  or  carries  away  any  other  person, 
with  the  intent  that  such  person  be  sold  into  involuntary 
servitude,  or  held  as  a  slave."6  But,  as  the  Immigration 
Commission  shows,  "if  a  person  simply  places  or  holds  another 
in  slavery,  it  is  impossible  for  the  federal  courts  to  impose 


1  W.  E.  Carson,  Mexico,  1914,  pp.  188,  189. 

2  Ibid.,  p.  191.     See  also  Ely,  Property  and  Contract,  1914,  Ch.  X. 

8  Constitution  of  the  United  States,  Fourteenth  Amendment,  Sec.  I, 
in  force  July  28,  1868. 

4  Immigration  Commission,  Abstracts  of  Reports,  1911,  Vol.  II,  p.  446. 

5  United  States  Revised  Statutes,  1898,  Sec.  5508. 

6  Ibid.,  Sec.  5525. 


INDIVIDUAL   BARGAINING  39 

penalties  under  statutes  at  present  in  vogue  (IQII),  unless 
the  placing  or  holding  be  for  the  purpose  of  forcing  the  settle- 
ment of  a  debt,  no  matter  how  great  may  be  the  abuses  per- 
petrated upon  the  person  held.  In  the  Clyatt  case  the 
Supreme  Court  decided  unmistakably  that  the  peonage 
statute  (R.  S.  5526)  referred  only  to  cases  where  the  return 
or  arrest  or  holding  has  been  for  the  purpose  of  paying  a 
debt."1 

The  chief  origins  of  the  enforced  indebtedness  upon  which 
peonage  rests  are  advances  made  by  the  employer  to  the 
laborer,  misrepresentations  made  to  laborers  by  unscrupulous 
employment  agents,  the  payment  by  an  employer  of  fines 
and  costs  in  cases  of  misdemeanor,  especially  violations  of 
vagrancy  laws,  and  the  operation  of  contract  labor  laws. 
Advances  to  laborers  might  include  payments  for  transporta- 
tion, working  equipment  of  various  sorts,  and  any  payment 
in  kind,  such  as  food,  clothing,  or  housing,  accomplished 
through  company  stores  and  land  ownership.  An  example 
is  found  in  the  state  of  Maine,  where  advances  are  made  to 
laborers  sent  out  by  employment  agents  who  "misrepresent 
conditions  in  the  woods,  and  frequently  tell  the  laborers  that 
the  camps  will  be  but  a  few  miles  from  some  town  where  they 
can  go  from  time  to  time  for  recreation  and  enjoyment. 
Arriving  at  the  outskirts  of  civilization,  the  laborers  are 
driven  in  wagons  a  short  distance  into  the  forests,  and  then 
have  to  walk  sometimes  sixty  or  seventy  miles  into  the  in- 
terior, the  roads  being  impassable  for  vehicles.  The  men  will 
be  kept  in  the  heart  of  the  forest  for  months  throughout  the 
winter,  living  in  the  most  rugged  fashion  and  with  no  recrea- 
tion whatever."2  Similar  practices  of  deceit  were  exercised 
by  the  agencies  which  send  labor  from  New  York  to  the 
South. 

Abuses  of  the  vagrancy  laws  were  found  to  occur  in  the 
South,  involving  both  negro  and  white  laborers.3  In  Florida, 
for  instance,  "common  pipers  and  fiddlers,  common  railers 
and  brawlers"  may  be  arrested  under  the  vagrancy  law  of 

1  Immigration  Commission,  Abstracts  of  Reports,  Vol.  II,  p.  446.  See 
also  Clyatt  v.  U.  S.,  197  U.  S.  207,  25  Sup.  Ct.  429  (1904). 

*Ibid.,  p.  447. 

3  United  States  Department  of  Justice,  Annual  Report  of  the  Attorney- 
General,  1907,  Exhibit  17,  pp.  207-213. 


40         PRINCIPLES  OF  LABOR   LEGISLATION 

1905,  and  fined  not  more  than  $250  or  imprisoned  not  more 
than  six  months.  Other  states  of  the  South  make  it  quite 
easy  for  arrests  to  be  made  under  these  statutes.  The  victim 
is  usually  a  negro  who,  for  a  trivial  offense,  or  no  offense  at 
all  except  being  unemployed,  will  be  arrested  and  charged 
with  vagrancy.  He  gets  little  consideration  from  the  local 
justices,  and  his  fines  are  so  high  that'fce  is  unable  to  pay  them. 
An  employer  appears  and  advances  the  fine  on  the  condition 
that  the  laborer  will  work  out  his  debt.  When  the  debt  is 
worked  out,  and  the  negro  is  again  unemployed,  he  will,  per- 
haps, be  rearrested  on  similar  charges,  and  in  such  manner 
becomes  virtually  a  peon.  Occasionally  a  victim  is  not  al- 
lowed to  pay  the  fine  when  he  has  the  money;  he  will  be 
imprisoned  and  word  sent  to  a  planter,  who  comes  in  and 
pays  his  fine  and  then  takes  possession  of  the  unfortunate 
criminal,  who  is  obliged  to  work  off  his  debt.  In  most  cases 
this  is  as  hopeful  a  proceeding  as  borrowing  from  a  mediaeval 
usurer,  for  at  the  end  of  months  of  toil  the  laborer  may  find 
himself  as  deeply  in  debt  as  ever.1 

Although  the  Immigration  Commission  reported  that  in 
every  state  except  Connecticut  and  Oklahoma  there  had 
occurred  sporadic  cases  which,  if  supported  by  legal  evidence, 
would  constitute  peonage  as  the  Supreme  Court  has  defined 
it,  nevertheless  no  general  system  of  peonage,  and  no  senti- 
ment supporting  it,  were  found.  In  the  South,  where  such 
practices  were  most  frequent,  prosecution  by  United  States 
district  attorneys  was  vigorous  and  usually  successful.2 


(2)  From  Master  and  Servant  to  Employer  and  Employee 

In  the  master  and  servant  stage  we  have  the  beginnings 
of  the  contract.  In  some  cases  the  contract  is  very  elementary 
in  form,  while  in  others  it  approximates  closely  the  free  labor 
contract.  It  is  the  first  expression  of  the  idea  of  equality 
between  the  laborer  and  his  employer.  The  master  was  at 
liberty  to  hire  whomsoever  he  wished,  and,  on  the  other 


1  M.  C.  Terrell,  "Peonage  in  the  United  States,"  Nineteenth  Century 
and  After,  Vol.  LXII,  1907,  pp.  312,  313. 

2  Immigration  Commission,  Abstracts  of  Reports,  Vol.  II,  p.  445. 


INDIVIDUAL  BARGAINING  41 

hand,  the  servant  could  work  for  any  master  he  chose.  The 
master  was  not  free  to  discharge  his  servant  during  the  term 
of  the  contract,  nor  the  servant  free  to  quit  his  master  and 
to  work  for  another.  The  laborer  was  to  serve  the  master 
faithfully,  keep  his  secrets,  obey  his  lawful  commands,  and 
guard  his  interests.  On  the  other  hand,  the  master  was  to 
give  his  servant  a  living,  to  protect  him  and  look  after  his 
welfare. 

a.  Indentured  Service.  The  slave,  the  serf,  and  the  peon 
perform  their  labor  under  a  fixed  status,  and  the  individual 
has  little  or  nothing  to  say  about  it.  The  indentured  servant 
had  in  some  particulars  the  right  of  a  servant  in  making  a 
contract,  and  in  other  respects  he  was  little  more  than  a  slave, 
except  that  his  chances  for  ultimate  freedom  were  more  real. 
Indentured  labor  is  peculiar  to  new  countries  where  labor  is 
scarce,  and  where  opportunity  for  individual  enterprise  is 
great.  To  the  American  colonies  people  were  shipped  from 
the  old  world  to  supply  the  need  for  young,  healthy,  energetic 
laborers  for  the  development  of  the  new.  Children  were 
sometimes  shipped  under  the  Elizabethan  statute  of  appren- 
tices.1 White  indentured  service  is  mentioned  in  laws  of  all 
the  thirteen  colonies.2  The  dates  1619  to  1819  may  be  taken 
as  indicating  roughly  the  beginning  and  end  of  the  system. 
Competition  with  slavery  destroyed  it  in  the  South  before  the 
end  of  the  eighteenth  century,  but  it  continued  to  exist  in 
the  northern  states  into  the  nineteenth  century.  White  ser- 
vitude was  hampered  by  too  many  considerations  in  favor  of 
the  laborer;  above  all,  the  white  servant's  labor  belonged  to 
his  master  only  for  a  term  of  years,  after  which  he  was  as  free 
as  any  one  else,  while  the  slave's  services  were  property  during 
the  term  of  his  life. 

6.  Apprenticeship.  Apprenticeship  proper  differs  from  in- 
dentured service  in  that  the  master  obligates  himself  to  teach 
the  apprentice  a  trade.  If  this  obligation  does  not  appear 
in  the  contract,  or  is  not  enforced,  the  apprentice  becomes  in 
fact  an  indentured  servant.3  Thus  many  who  came  to 
America  under  what  purported  to  be  apprenticeship  contracts 


2  Hurd,  Law  of  Freedom  and  Bondage  in  the  United  States,  1858,  Ch,  VI. 

3  Abbott,  Women  in  Industry,  1910,  p.  331. 


42         PRINCIPLES   OF   LABOR   LEGISLATION 

were  in  reality  indentured  servants.  The  two  merged  into 
each  other  in  another  direction,  in  that  an  apprentice  could  be 
bound  for  seven  years  to  learn  a  trade  which  could  be  learned 
as  well  in  three.  Four  years'  enforcement  of  such  a  contract 
would  be  really  indentured  service  and  only  three  years' 
would  be  true  apprenticeship.1 

c.  Contract  Labor,  Midway  between  indentured  service,  on 
one  hand,  and  the  padrone  system  on  the  other,  is  contract 
labor.  This  form  of  labor,  although  apparently  built  on  free- 
dom of  contract,  results  in  compulsory  service  or  in  peonage 
practices.  It  is  the  kind  of  labor  contract  whose  perform- 
ance can  be  enforced  at  law,  and  has  been  quite  common 
where  large  numbers  of  natives  of  backward  races  have  been 
employed,  as  in  the  Hawaiian  Islands,  the  Philippines,  the 
West  Indies,  and  in  South  Africa,  where  Chinese  coolies  were 
employed  in  the  mines. 

In  many  respects  contract  labor  closely  resembles  peonage, 
as  we  have  previously  suggested,  for  it  places  the  laborer  in 
the  position  of  a  debtor  owing  services,  yet  there  is  a  differ- 
ence between  the  two.  Peonage  involves  continuous  or  in- 
definite service,  as  long  as  a  balance  of  debt  continues,  which 
may  be  permanent.  But  contract  labor  pertains  to  a  term 
of  years  only,  after  which  the  laborer  cannot  be  compelled  to 
work.  Furthermore,  should  the  laborer  renew  his  contract 
because  of  economic  pressure,  still  it  is  only  for  another  term 
of  years.  Contract  labor  results  in  servitude  for  a  definite 
period  only,  while  it  leaves  the  way  open  to  freedom.  It  is 
possible,  however,  that  abuses  of  the  system  may  lead  very 
easily  to  a  state  almost  as  bad  as  peonage,  and  it  is  this  pos- 
sibility, that  has  made  contract  labor  unpopular  in  freedom- 
loving  countries  and  has  led  to  legislation  aiming  at  its  re- 
striction and  abolition. 

In  the  Hawaiian  Islands  a  condition  of  contract  labor 
existed  for  fifty  years.  In  order  to  solve  the  problem  raised 
by  the  scarcity  of  labor  combined  with  the  opportunity  for 
industrial  development,  the  employing  class  got  a  law  enacted 
in  1850  by  which  laborers  over  twenty  years  of  age  could 


1  See  chapter  on  governmental  regulation  of  apprentices  in  J.  M. 
Motley,  Apprenticeship  in  American  Trade  Unions,  Johns  Hopkins  Uni- 
versity Studies,  Vol.  XXV,  1907,  p.  494. 


INDIVIDUAL  BARGAINING  43 

contract  themselves  to  service  for  not  more  than  five  years. 
Refusal  to  work  on  the  part  of  such  a  person  was  punished 
by  imprisonment  with  hard  labor.  The  man  who  tried  to 
escape  and  was  caught  could  be  bound  to  double  the  original 
term  of  service.  A  later  amendment  added  to  the  punish- 
ment for  a  second  desertion  three  months'  hard  labor  for  the 
state.1  This  condition  of  contract  labor  was  abolished  in 
1900  by  a  clause  in  the  organic  act  settling  the  conditions  of 
annexation  to  the  United  States. 

While  the  performance  of  labor  cannot  be  compelled  by 
direct  means,  except  where  life  and  property  are  endangered, 
or  public  necessity  and  convenience  demand  it,  yet  indirect 
devices  are  invented  to  effect  the  same  thing.  Statutes  which 
deal  with  "employers'  advances"  make  it  a  misdemeanor  for 
the  employee  to  fail  in  the  performance  of  his  contract  to 
work  off  a  debt.  As  imprisonment  for  debt  has  been  pro- 
hibited by  law,  the  only  means  by  which  these  contract  labor 
laws  can  be  made  effective  is  to  couch  them  in  such  terms  as 
to  make  the  laborer  breaking  his  contract  appear  to  be  guilty 
of  getting  money  or  provisions  under  false  pretenses.  Intent 
to  defraud  must  be  shown,  since  a  mere  breach  of  the  labor 
contract  is  not  a  crime.2 

The  law  of  Alabama  provides  that  "the  refusal  of  any  per- 
son who  enters  into  such  contract  to  perform  such  act  or  ser- 
vice, or  refund  such  money,  or  pay  for  such  property  without 
just  cause,  shall  be  prima  facie  evidence  of  the  intent  to  injure 
his  employer,  or  to  defraud  him."  3  The  statute  of  Maine, 
enacted  in  igoy,4  treating  of  contract  labor,  does  not  state  that 
failure  to  perform  the  debt  is  prima  facie  evidence  of  intent  to 
defraud,  but  judicial  interpretation  has  had  the  same  result.5 

Prosecutions  under  such  statutes,  however,  have  been  in- 
validated by  a  sweeping  decision  of  the  United  States  Supreme 
Court  in  a  leading  case.6  Here  the  court  stated:  "The  fact 


1  Katharine   Coman,    "Contract    Labor   in    the    Hawaiian    Islands," 
American  Economic  Association  Publications,  3d  Series,  Vol.  IV,  1903, 
pp.  492-493,  531- 

2  Ex  parts  Riley,  94  Ala.  82,  10  So.  528  (1891). 

3  Alabama,  Code  1896,  Sec.  4730,  as  amended  1903  and  1907. 

4  Maine,  Laws  1907,  C.  7. 

6  Immigration  Commission,  Abstracts  of  Reports,  Vol.  II,  p.  448. 

6  Bailey  v.  Alabama,  219  U.  S.  219,  at  p.  242,  31  Sup.  Ct.  145  (1910). 


44         PRINCIPLES  OF  LABOR  LEGISLATION 

that  the  debtor  contracted  to  perform  the  labor  which  is 
sought  to  be  compelled  does  not  withdraw  the  attempted  en- 
forcement from  the  condemnation  of  the  statute  (prohibiting 
peonage).  The  full  intent  of  the  constitutional  provision 
could  be  defeated  with  obvious  facility  if,  through  the  guise 
of  contracts  under  which  advances  had  been  made,  debtors 
could  be  held  to  compulsory  sendee.  It  is  the  compulsion  of 
the  service  that  the  statute  inhibits,  for  when  that  occurs  the 
condition  of  servitude  is  created,  which  would  be  not  less 
involuntary  because  of  the  original  agreement  to  work  out 
the  indebtedness.  The  contract  exposes  the  debtor  to  liability 
for  the  loss  due  to  the  breach,  but  not  to  enforced  labor.  .  .  . 
The  act  of  Congress  (Act  of  1875)  deprives  of  effect  all  legis- 
lative measures  of  any  state  through  which,  directly  or  in- 
directly, the  prohibited  thing,  to  wit,  compulsory  service  to 
secure  the  payment  of  a  debt,  may  be  established  or  main- 
tained." This  decision  delivered  in  1910  invalidated  laws  of 
like  nature  in  other  states,1  for  the  court  observed:  "No 
question  of  a  sectional  character  is  presented  and  we  may 
view  the  legislation  in  the  same  manner  as  if  it  had  been 
enacted  in  New  York  or  Idaho.  Opportunities  for  coercion 
and  oppression  in  varying  circumstances  exist  in  all  parts  of 
the  union,  and  the  citizens  of  all  these  states  are  interested 
in  the  maintenance  of  the  constitutional  guarantees  the  con- 
sideration of  which  is  here  involved."  2 

Until  very  recently  seamen  have  generally  stood  on  a  dif- 
ferent footing  from  other  employees,  for  with  them  enforced 
contracts  were  permitted  and  the  law  as  to  involuntary  servi- 
tude has  not  been  applicable.  In  the  case  of  Robertson  v. 
Baldwin3  the  court  stated:  "Seamen  are  treated  by  Congress 
as  well  as  by  the  Parliament  of  Great  Britain  as  deficient  in 
that  full  and  intelligent  responsibility  for  their  acts  wrhich  is 
accredited  to  ordinary  adults,  and  as  needing  the  protection  of 
the  law  in  the  same  sense  in  which  minors  and  wards  are  en- 
titled to  the  protection  of  their  parents  and  guardians."  How- 


1  Arkansas,  Florida,  Georgia,  Louisiana,  Michigan,  Minnesota,  New 
Hampshire,  New  Mexico,  North  Dakota,  South  Carolina,  and  Virginia. 
See  United  States  Bureau  of  Labor  Statistics,  Bulletin  No.  148,  "Labor 
Laws  of  the  United  States,"  1914,  and  annual  supplements  to  1918,  Bul- 
letins No.  166,  186,  21 j,  244,  257. 

2  Baiiey  v.  Alabama,  219  U.  S.  219,  at  p.  231,  31  Sup.  Ct.  145  (1910). 

3  Robertson  v.  Baldwin,  165  U.  S.  287,  17  Sup.  Ct.  326  (1897). 


INDIVIDUAL  BARGAINING  45 

ever,  since  the  date  of  that  case  the  law  of  the  United  States 
affecting  seamen  has  been  changed  and  more  freedom  has  been 
granted.  A  law1  of  the  63d  Congress  abolishes  arrest  and 
imprisonment  as  a  penalty  for  desertion.  It  goes  so  far  as 
to  stipulate  that  it  shall  be  unlawful  in  any  case  to  pay  any 
seaman  wages  in  advance  of  the  time  when  he  has  actually 
earned  the  same,  or  to  pay  any  person  for  the  shipment  of 
seamen  when  payment  is  deducted  or  to  be  deducted  from 
seamen's  wages.  This  is  a  clear  effort  to  prevent  the  obliga- 
tion of  indebtedness  on  which  involuntary  servitude  is  based. 

The  law  goes  further  and  provides  that  for  quitting  the 
vessel  without  leave  after  her  arrival  at  the  port  of  her  de- 
livery and  before  she  is  placed  in  security  a  seaman  forfeits 
from  his  wages  not  more  than  one  month's  pay.  This  ap- 
proaches the  free  contract  perhaps  as  far  as  the  conditions  of 
seafaring  will  permit.  Congress  regulates  the  nature  of  the 
contract,  the  term  of  service,  the  payment  and  assignment 
of  wages,  advance  payments  and  credits,  the  regulation  of 
sailors'  lodging-houses,  of  shipping-masters,  quarters  on  board 
ship,  rations,  and  many  other  details. 

Railroad  employees  also  come  within  the  power  of  Con- 
gress, and  it  was  a  federal  court  which,  while  reiterating  the 
general  right  of  employees  to  quit  work,  suggested  by  way  of 
dicta  that  "his  quitting  would  not  be  of  right  and  he  would 
be  liable  for  any  danger  resulting  from  a  breach  of  his  agree- 
ment and  perhaps  in  some  cases  subject  to  criminal  prosecu- 
tion for  loss  of  life  and  limb,  by  passengers  or  others,  directly 
resulting  from  his  abandoning  his  post  at  a  time  when  care 
and  watchfulness  were  required  upon  his  part  in  the  dis- 
charge of  a  duty  he  had  undertaken  to  perform."5  Laws  on 
this  subject,  excepting  that  of  Connecticut,  connect  the  cessa- 
tion of  work  with  combinations  and  strikes,3  and  forbid  en- 
gineers and  railroad  employees  to  abandon  locomotives  under 

1  United  States    Laws  1914-1915,  C.   153;    Revised   Statutes,    Sees. 
4529,  4530,  4596,  4610,  4611.     Title:  An  act  to  promote  the  welfare  of 
American  seamen  in  the  merchant  marine  of  the  United  States ;  to  abolish 
arrest  and  imprisonment  as  a  penalty  for  desertion,  and  to  secure  the 
abrogation  of  treaty  provisions  in  relation  thereto  ;    and  to  promote 
safety  at  sea. 

2  Arthur  v.  Oakes,  II  C.  C.  A.  209,  63  Fed.  310  (1894). 

3  Delaware,  Illinois,  Kansas,  Maine,  Minnesota,  New  Jersey,  Penn- 
sylvania. 


46         PRINCIPLES  OF  LABOR  LEGISLATION 

circumstances  of  this  nature,  under  penalty  of  fine  and  im- 
prisonment. 

d.  Padrone  System.  The  padrone  system  is  one  step  re- 
moved from  contract  labor.  Those  who  work  under  this 
system  permit  a  leader,  the  padrone,  to  make  their  contracts, 
yet  the  agreement  is  not  enforceable  at  law.  It  is  enforced 
only  by  their  own  necessities.  The  system  started  first  with 
Italian  laborers.  The  padrone  brought  over  laborers  from 
Italy,  advancing  the  cost  of  their  transportation,  and  hired 
them  out  to  a  contractor.  He  rented  to  them  the  shanties 
in  which  they  lived  while  at  work,  and  sold  them  supplies  of 
food. 

Italian  laborers  formerly  made  contracts  with  their  padrone 
to  serve  him  for  one  to  three  years,  and  occasionally  for  a 
longer  period.1  The  report  of  the  Immigration  Investigating 
Commission  of  1895  shows  that  Italians  and  other  foreigners 
had  been  imported  "by  the  cargo"  into  the  Michigan  iron- 
mines  and  worked  on  the  padrone  system  in  the  earl}7  'nine- 
ties.2 This  was  probably  the  time  when  the  padroni  were 
the  most  numerous  and  flourishing. 

Formal  agreements  among  the  laborers  and  the  padroni  are 
being  discontinued,  and  for  this  there  are  perhaps  three  rea- 
sons. First,  because  the' alien  contract  labor  laws  make  their 
agreements  not  only  unenforceable  at  law,  but  actually  punish- 
able if  discovered  by  the  government.  Secondly,  spontane- 
ous immigration  from  Italy  has  now  become  so  great  that  it 
is  not  worth  the  padrone's  while  to  risk  a  conviction  under 
the  contract  labor  laws,  so  that  he  is  now  merely  a  middle- 
man. Thirdly,  there  is  the  condition  of  dependence  on  one 
side  and  assistance  on  the  other.  The  padrone  does  not  es- 
tablish his  control  over  a  man,  strictly  speaking,  either  by 
force  or  fraud.  Dr.  Rossi  calls  the  padrone  system  "the  forced 
tribute  which  the  newly  arrived  pays  to  those  who  are  ac- 
quainted with  the  ways  and  language  of  the  country."5  The 
system  is  founded  on  an  inequality  more  deeply  rooted  than 
the  usual  inequality  between  the  employer  and  the  laborer. 
The  races  which  work  under  this  method  are  ignorant  and 


1  Industrial  Commission,  Report,  Vol.  XV,  1901,  pp.  430-432. 
1  Immigration  Investigating  Commission,  Report,  1895,  p.  26. 
» Industrial  Commission,  Report,  VoL  XV.,  1901,  p.  432. 


INDIVIDUAL  BARGAINING  47 

accustomed  to  be  commanded,  and  it  is  on  their  dependence 
and  lack  of  knowledge  that  the  power  of  the  padrone  rests. 
Seen  from  the  standpoint  of  the  immigrant,  a  remedy  is  to 
be  found  not  so  much  in  legal  rights,  as  in  better  education, 
American  habits  of  thought,  efficient  employment  bureaus, 
and  more  adequate  administration  of  existing  laws. 

e.  Imprisonment  for  Debt.  Not  only  as  a  debtor-laborer, 
but  also  as  a  debtor-consumer,  the  laborer  receives  considera- 
tion. Imprisonment  for  debt  originally  had  no  particular 
bearing  on  the  labor  contract  or  its  history.  The  fundamental 
idea  in  the  ancient  German  imprisonment  for  debt  is  the  in- 
direct compulsion  to  pay.  The  debtor  was  to  be  encouraged 
to  pay  what  he  owed  by  being  made  uncomfortable  until  he 
did  so.  Compulsion  to  work  had  given  place  to  compulsion 
to  pay.1 

The  abolition  of  imprisonment  for  'debt  was  one  of  the 
issues  raised  by  the  early  workingmen's  parties  in  1827. 
Kentucky,  the  first  state  to  abolish  imprisonment  for  debt, 
had  already  done  so  in  1821.  New  York  followed  ten  years 
later,  and  a  series  of  legislative  and  constitutional  provisions 
followed  at  intervals  throughout  the  country.  Inability  to 
pay  one's  debts,  if  not  accompanied  by  embezzlement  or  other 
fraudulent  conduct,  is  now  no  longer  a  reason  for  imprison- 
ment in  civilized  countries.2 

/.  Wage  Exemption.  Following  the  abolition  of  imprison- 
ment for  debt  is  the  wage  exemption  legislation  which  took 
on  large  proportions  in  the  United  States  in  the  'forties.  At 
the  present  time  every  state  in  the  union  has  legislation 
exempting  wages  from  attachment  and  execution  for  debt. 
In  other  words,  the  authority  given  to  the  sheriff  or  other 
administrative  officer  to  seize  from  the  property  of  the  de- 
fendant (debtor)  a  sufficient  amount  to  satisfy  the  judgment 
in  favor  of  the  creditor,  is  invalid  when  applied  to  wages 
under  the  exempt  amount.  The  persons  covered  by  these 
laws  are  differently  specified  in  different  states.  Several  pro- 
vide for  exemption  of  "all  laborers,  mechanics,  and  day  labor- 


lTh.  Niemeyer,  "Schuldhaft,"  Handworterbuch  der  Staatswissen- 
schaften.  Vol.  V,  1911,  p.  593. 

2  An  important  discussion  of  existing  imprisonment  for  debt  in  Eng- 
land is  found  in  E.  A.  Parry,  The  Law  and  the  Poor. 


48         PRINCIPLES   OF   LABOR   LEGISLATION 

ers,"  as  in  Georgia;  "residents  of  the  state,"  as  in  Idaho; 
"resident  debtor,"  as  in  Iowa;  all  "householders,"  as  in  In- 
diana; "judgment  debtor,"  as  in  New  York;  and  "all  who 
support  themselves  and  their  families  by  the  labor  of  their 
hands,"  as  in  Wisconsin. 

The  amount  of  wages  exempted  varies  somewhat  from  state 
to  state.  Some  exempt  sixty  days'  wages,  others  thirty 
days' ,  while  still  others  stipulate  a  certain  percentage  of  wages 
due  as  exempt,  or  state  how  large  a  per  cent,  may  be  col- 
lected for  a  given  period.  The  exempted  amount  runs  from 
$20,  as  in  Massachusetts,  to  not  more  than  $100,  as  in  the 
District  of  Columbia.  The  usual  period  of  exemptions,  in 
so  far  as  the  time  is  specified  at  all,  is  the  two  months  pre- 
ceding attachment.  In  all  cases  it  is  clear  that  the  purport 
of  the  laws  is  to  protect  the  minimum  earnings  of  the  work- 
ingman  who  has  nothing  to  depend  upon  except  his  wages. 

Wage  exemption  applies  not  only  against  execution  or  at- 
tachment, but  also  against  garnishment.1  This  is  a  proceed- 
ing by  which  the  plaintiff  in  an  action  seeks  to  reach  the  rights 
and  effects  (wages  in  this  case)  of  the  defendant  by  calling 
into  court  some  third  party  (employer)  who  has  such  effects 
(wages)  in  his  possession  or  who  is  indebted  to  the  defend- 
ant.2 Should  the  employer  unwarrantedly  make  payments 
from  his  employee's  wages,  he  will  still  be  left  liable  to  the 
employee  himself  for  a  second  payment  of  the  wages.3 

g.  Homestead  Exemption.  All  American  states  have  pro- 
vided that  the  means  of  earning  a  livelihood,  that  is,  the 
tools  of  one's  trade  or  profession,  shall  be  exempt  from  execu- 
tion. Along  with  the  exemption  of  personal  property  goes 
homestead  exemption.  This  legislation  is  designed  to  keep 
intact  the  family  unit  in  society,  to  prevent  entire  destruction, 
and  to  encourage  a  debtor  who  has  been  reduced  to  the 
last  term  to  try  again.  However,  these  laws  are  not  for 
laborers  alone,  but  for  any  person.  In  most  states  a  man 
must  be  a  householder  or  the  head  of  a  family  in  order  to  get 

1  Clark,  Law  of  the  Employment  of  Labor,  1911,  p.  56. 

2  Cyclopedia  of  Law  and  Procedure,   Vol.    XX,    1901-1914,   p.    978. 
"While  a  garnishment  proceeding  accomplishes  the  same  purpose  as  an 
attachment  or  execution,  it  is  in  no  sense  a  levy  on  property,  but  a 
judicial  proceeding  by  which  a  new  judgment  is  obtained." 

3  See  Clark,  Ibid.,  p.  55,  and  cases  cited. 


INDIVIDUAL  BARGAINING  49 

the  exemption,  but  in  a  few  states  any  person  may  be  entitled 
to  the  exemption.  The  limitations  on  the  homestead  exemp- 
tion are  in  both  acreage  and  value.  Rural  homesteads  may 
vary  in  acres  from  forty  to  100,  and  city  homesteads  from  one 
lot  to  one  acre  (five  acres  in  one  state).  Maximum  monetary 
limits  are  $500  to  $5,000. 

In  1848  English  statutes  provided  only  that  tools  and 
actual  necessaries  of  judgment  debtors  were  not  to  be  seized 
in  execution.  In  1883  a  statute  carried  the  exemption  a  little 
further,  so  as  to  include  "the  tools  (if  any)  of  his  trade  and 
the  necessary  wearing  -  apparel  and  bedding  of  himself,  his 
wife  and  children,  to  a  value,  inclusive  of  tools  and  apparel 
and  bedding,  not  exceeding  twenty  pounds  ($100)  in  the 
whole."1  These  provisions  have  parallels  in  most  of  the 
British  colonies,  and  the  exempted  property  amounts  to 
about  the  same.  Nowhere,  however,  is  the  exemption  as 
liberal  as  in  the  United  States.  Homestead  exemptions  are 
peculiar  to  the  United  States,  but  the  tools  of  a  debtor's 
trade,  at  least,  are  exempted  in  most  English-speaking 
countries. 

h.  Assignment  of  Wages.  Assignment  of  wages  grows  out 
of  the  legal  act  of  transferring  or  making  over  to  another  of 
the  whole  or  part  of  any  property,  real  or  personal,  in  pos- 
session or  in  action,  or  of  any  estate  or  right  therein.  But  if 
the  wage-earner  is  to  have  effective  exemption  of  wages  from 
attachment  and  garnishment,  it  is  consistent  that  he  be  pre- 
vented from  making  an  assignment  of  his  future  wages. 
Assignments  of  unearned  wages  are  safeguarded  in  various 
ways,  as  by  requirement  that  they  must  be  recorded,  that 
copies  must  be  filed  with  the  employer,  or  even  that  the 
employer's  consent  must  be  obtained,  or  that  the  wife  must 
join  in  the  husband's  assignment,  or  vice  versa.  Missouri 
affords  a  good  example  of  effort  to  modify  this  evil.  An 
act  of  1911  provides  that  "all  amounts  of  wages,  salaries, 
or  earnings  must  be  in  writing  with  the  correct  date  of  the 
assignment  and  the  amount  assigned,  and  the  name  or  names 
of  the  party  or  parties  owing  the  wages,  salaries,  and  earnings 
so  assigned,  and  all  assignments  of  wages,  salaries,  and  earnings 


'46  and  47  Viet.,  €.31,  Pt.  IV,  Sec.  44. 
4 


So         PRINCIPLES   OF   LABOR   LEGISLATION 

not  earned  at  the  time  the  assignment  is  made  shall  be  null 
and  void."  Assignments  to  secure  loans  or  future  advances 
are  invalid  in  Georgia  and  Massachusetts,  and  all  assignments 
of  future  earnings  are  prohibited  in  Indiana. 


2.  THE  LABORER  AS  CREDITOR 

Modern  industry  is  conducted  mainly  "on  credit."  The 
employer  is  the  middleman,  whose  creditors  are  those  who 
advance  the  capital  he  uses,  and  whose  debtors  are  those  who 
buy  his  product.  When  the  laborer  starts  to  work  for  him, 
he  also  becomes,  for  a  time,  a  creditor.  He  contributes  his 
services  in  advance  of  compensation.  He  is  a  temporary  in- 
vestor in  the  business.  While  he  works  he  passes  over  to  the 
employer  the  title  to  his  product,  and  retains  a  claim  for  wages. 
When  his  wages  are  paid  his  investment  is  liquidated. 

Other  investors  advance  money  or  "credit."  Their  con- 
tracts are  secured  by  notes,  bonds,  mortgages,  giving  to  them 
a  preferred  claim  on  the  property  and  earnings  of  the  busi- 
ness. They  invest  "capital" — the  laborer  invests  "labor." 
Laws  regulating  the  time,  place,  and  medium  of  payment, 
laws  providing  for  mechanics'  liens,  wage  preference,  and 
so  on,  are  intended  to  guarantee  to  the  laborer  as  creditor, 
regardless  of  contract,  that  certainty  of  payment  which  the 
capitalist  as  creditor  secures  in  the  ordinary  enforcement 
of  contracts. 

(i)  Time  of  Payment 

Legislation  has  not  until  recently1  ventured  to  interfere 
directly  and  set  the  amount  of  wages,  but  it  makes  the  amount 
of  wages  greater  or  less  by  indirect  methods.  Whatever  the 
nominal  amount  may  be,  the  frequency  of  the  time  of  pay- 
ment is  a  matter  of  concern  to  the  laborer.  The  longer  he 
must  wait  for  his  wages  the  greater  is  the  extent  of  his  need 
for  credit,  and,  accordingly,  the  higher  will  be  his  cost  of 
living  and  the  lower  his  real  wages.  The  advantages  of  fewer 


See  Chapter  IV,  "The  Minimum  Wage." 


INDIVIDUAL  BARGAINING  51 

pay  days  are  obvious  to  the  employer.  His  cost  of  book- 
keeping is  less,  and  his  required  circulating  capital  will  be  less. 

Over  the  entire  world  in  industrial  states  there  are  statutes 
requiring  a  regular  pay  day,  which  may  be  once  a  month, 
semi-weekly,  or  weekly.  Many  of  the  European  laws  are  so 
phrased  that  modifications  may  be  introduced  according  to 
local  custom.1  The  Swiss  government  makes  it  incumbent 
upon  the  master  to  pay  w^ages  at  any  time  according  to  work 
done,  so  as  to  enable  the  servant  to  meet  any  special  need,  and 
the  interpretation  of  the  law  is  left  to  administrative  officers.2 

Two-thirds  of  the  states  of  the  United  States,  and  Hawaii, 
have  laws  dealing  with  time  and  mode  of  payment  of  wages. 
Most  of  these  laws  provide  for  semi-monthly  payment,  and 
most  of  them  stand  without  being  contested  in  the  courts 
to  determine  their  constitutionality.  Some  cases  have  reached 
the  courts,  and  different  decisions  have  been  rendered. 

In  favor  of  the  validity  of  such  laws,  it  has  been  argued  that 
semi-monthly  payment  of  wages  is  required  by  the  actual 
necessities  of  employees,  and  that  regular  payment  of  wages 
at  short  intervals  is  much  more  a  matter  of  life  and  death  to 
a  workingman  with  a  family  dependent  on  him  than  to  the 
employing  corporation.3  The  purpose  of  the  Rhode  Island 
weekly  payment  law  was  laid  do^Yn  by  the  court  as  being  pro- 
tection of  the  worker  frorn  "the  greed  of  corporate  capital." 
Poverty  and  weakness,  it  was  said,  "can  wage  but  an  unequal 
contest  with  corporate  wealth  and  power";  and  the  act  was 
considered  to  be  for  the  prosperity  and  comfort  of  the  work- 
ingmen,  who  depend  entirely  on  their  weekly  wages,  and  are, 
like  other  people,  obliged  to  pay  for  credit.4 

The  cases  in  which  laws  relating  to  time  of  wage  payment 
have  been  held  unconstitutional  show,  as  might  be  expected, 
that  less  consideration  was  given  to  the  practical  economic 
facts  of  the  situation.  In  these  cases  appears  the  usual  argu- 
ment that  the  liberty  of  contract  of  the  workingman  is  en- 


1  For  example,  the  Netherlands,  Bulletin   of  the  International   Labor 
Office,  Vol.  II,  1907,  p.  411. 

2  Federal    act   to   supplement  the  Swiss  federal  code,    March,    1911, 
Bulletin  of  the  International  Labor  Office,  Vol.  VI,  1911,  p.  96. 

3  Arkansas  Stave  Co.  v.  State,  94  Ark.  27,  125  S.  W.  1001  (1910). 

4  State  r.  Brown  &  Sharpe  Mfg.  Co.,  18  R.  I.  16,  25  Atl.  246  (1892),  at 
p.  252. 


52         PRINCIPLES   OF  LABOR  LEGISLATION 

croached  upon  by  legislation.  In  the  case  of  Johnson  v. 
Goodyear  Mining  Co.1  an  indignant  protest  was  raised  by 
the  court  against  any  interference  with  the  liberty  of  con- 
tract. "The  workingman  of  intelligence,"  it  was  said,  "is 
treated  as  an  imbecile.  Being  over  twenty-one  years  of  age, 
and  not  a  lunatic  or  insane,  he  is  deprived  of  the  right  to 
make  a  contract  as  to  the  time  when  his  wages  shall  fall  due." 

There  are  several  states  which  legislate  to  the  effect  that 
wages  shall  be  paid  during  working  hours.  This  accomplishes 
two  things:  it  saves  the  time  of  the  employee  and  precludes 
payment  in  bar-rooms.  In  Austria  the  time  for  payment  of 
wages  to  mine  workers  is  reckoned  within  the  duration  of  the 
shift.2  In  Massachusetts,  where  there  are  100  or  more  per- 
sons employed  in  any  establishment,  wages  are  to  be  paid 
during  working  hours.  In  France  payment  of  wages  must 
not  be  made  on  days  kept  as  rest  days  for  employees.3  The 
law  of  Greece  is  fairly  representative  of  those  of  some  other 
countries:  it  provides  that  wages  shall  be  paid  not  later  than 
the  time  when  daily  work  is  concluded,  and  that  in  under- 
takings with  more  than  200  workers  the  manner  of  paying 
wages  may  be  regulated  by  administrative  order.4 

Most  of  the  states  and  countries  provide  that  an  employee 
shall  be  paid  immediately  upon  discharge,  and  for  delay 
thereafter  is  entitled  to  interest  charges  —  in  the  case  of  Iowa 
$i  a  day  penalty  up  to  twice  the  amount  of  the  wages  due. 
In  some  cases  this  penalty  is  5  per  cent,  a  year  to  be  added 
for  the  cost  of  the  delay,  and  the  attorney's  fee  if  his  services 
are  necessary  to  procure  wages  withheld  from  an  employee. 
When  an  employee  quits,  the  law  generally  stipulates  that 
he  shall  be  paid  at  the  next  regular  pay  day. 


j 
(2)  Place  of  Payment 

The  evil  attached  to  the  payment  of  men  in  saloons  needs 
no  elaboration,  and  it  is  to  be  noticed  that  this  evil  is  partly 

1  Johnson  v.  Goodyear  Mining  Co.,  127  Cal.  4,  59  Pac.  304  (1899). 

2  Bulletin  of  the  International  Labor  Office,  Vol.  VII,  1912,  p.  246. 

3  Lois,  Decrets,  Arretes  concernant  la  Reglementation  du  Travail,  Bk.  I, 
Ch.  II,  Sec.  II,  Art.  46. 

4  Bulletin  of  the  International  Labor  Office,  Vol.  VII,  1912,  p.  290. 


INDIVIDUAL  BARGAINING  S3 

taken  care  of  in  some  places  by  providing  that  wages  shall 
be  paid  upon  the  premises,  as  in  Servia  and  Berne.  This 
coincides  with  most  of  the  legislation  of  the  American  states 
on  the  subject.  California  and  Nevada,  however,  specifically 
provide  that  payment  of  wages  shall  be  made  to  no  one  in 
bar-rooms  except  it  be  those  employed  therein.  Austria, 
Belgium,  France,  Germany,1  and  Great  Britain 2  have  all 
legislated  against  payment  of  wages  in  public  'houses  and 
taverns. 

(j)  Basis  of  Payment 

In  the  United  States  there  are  some  statutes  that  prohibit 
the  screening  of  coal  before  it  is  weighed,  the  loss  of  coal 
through  the  screen  being  regarded  as  causing  an  unjust  loss 
to  the  miner,  whose  contract  calls  for  payment  by  the  weight 
of  coal  mined.  The  validity  of  such  laws  has  been  both  up- 
held and  denied  by  different  state  courts,  but  in  the  case  of 
McLean  v.  State  of  Arkansas 3  the  Supreme  Court  held  the 
law  to  be  within  the  police  power  of  the  states. 


(4)  Medium  of  Payment 

Carlyle  declaimed  against  a  modern  civilization  whose  only 
bond  of  union  is  the  cash  nexus.  Yet,  from  a  different  point 
of  view,  it  may  be  said  that  liberty  depends  on  cash.  Indeed, 
the  transition  from  slavery  to  freedom  is  a  transition  from 
payment  in  lodging,  board,  and  goods,  or  "truck,"  to  pay- 
ment in  legal  tender  or  in  a  medium  convertible  into  money 
on  demand  at  its  face  value.  Cash  means  freedom.  It  per- 
mits the  wage-earner  to  buy  what  and  where  he  wants.  It 
also  means  earnings,  for  it  exposes  and  corrects  unwarranted 
deductions,  such  as  high  prices,  through  bookkeeping  ac- 
counts. 

a.  "Living  In."     Under  systems  of  slavery,  serfdom,  in- 


1  Great  Britain,   Departmental  Committee  on  Truck  Acts,   Report, 
1908,  pp.  96,  97. 

2  46  and  47  Viet.,  C.  31  (1883). 

3  McLean  v.  Arkansas,  211  U.  S.  539,  29  Sup.  Ct.  206  (1906). 


54         PRINCIPLES  OF  LABOR  LEGISLATION 

dentured  service,  and  apprenticeship  the  laborer  lived  on  the 
premises  of  his  master.  The  most  complete  survival  of  these 
systems  in  modern  industry  is  known  in  England  as  "living 
in,"  where  the  employee  receives  part  payment  in  board 'and 
lodging  at  his  place  of  employment.  The  system  is  en- 
countered in  all  countries,  and  is  characteristic  of  domestic  ser- 
vice. Very  often  "living  in  "  is  made  a  condition  of  employ- 
ment, either  express  or  implied,  and  the  board  and  lodging 
accommodations  provided  are  often  inferior  and  inadequate. 
The  system  may  rob  the  employees  of  their  sense  of  personal 
responsibility  and  check  individuality  and  independence  of 
character.  There  is  frequently  no  freedom  of  complaint,  for, 
if  the  workers  venture  to  remonstrate  about  food  or  lodging, 
they  render  themselves  liable  to  dismissal  and  "spoiling"  their 
references.  In  Great  Britain  the  committee  on  the  truck 
acts  in  1908  recommended  regulations  as  to  accommodations 
provided  in  "living  in"  establishments,  but  did  not  seem  to 
have  a  clear  case  for  the  abolition  of  the  system.  However, 
a  minority  report  advocated  its  entire  abolition.1 

In  Berne  the  law  of  igoS2  requires  that  food  provided  for 
the  employees  must  be  sufficient  and  wholesome  and  that 
the  accommodation  must  satisfy  all  sanitary  requirements. 
In  Austria  the  administrative  authority  may  determine  by 
order  that,  in  the  case  of  undertakings  of  a  certain  kind  or 
situation  in  certain  districts  it  shall  be  unlawful  to  provide 
board  or  lodging  for  the  employees  as  a  part  of  their  remu- 
neration.3 In  South  Australia  the  occupier  of  an  establish- 
ment and  the  members  of  his  family  are  prohibited  from  lodg- 
ing and  boarding  adult  persons  in  his  service,  in  the  case  of 
those  whose  wages  are  fixed  by  wage  boards,  exception  being 
made  in  the  case  of  hotels,  clubs,  restaurants,  and  the  like.4 

In  the  United  States  the  subject  of  "living  in"  has  not  yet 
come  into  the  realm  of  legislation,  but  it  exists  in  hotels, 
restaurants,  bakeries,  and  clubs. 

b.  Company  Houses  and  Labor  Camps.     The  employer  may 


1  Great  Britain,  Departmental  Committee  on  the  Truck  Acts,  Report, 
1908,  Vol.  I,  p.  78;   Minority  Report,  Vol.  I,  p.  84. 

2  Bulletin  of  the  International  Labor  Office,  Vol.  Ill,  1908,  p.  122. 

3  Ibid.t  Vol.  V,  1910,  p.  203. 

4  Ibid.,  Vol.  VII,  1912,  p.  20. 


INDIVIDUAL  BARGAINING  55 

build  "company  houses"  for  his  workmen  which  they  must 
occupy,  and  the  rent  is  then  deducted  from  wages.  Fre- 
quently these  houses  are  better  than  those  which  the  em- 
ployees would  provide,  but  they  have  counteracting  dis- 
advantages in  contractual  ties  of  dependence.  In  New  York 
where  factory  operatives  are  given  living  quarters,  these  may 
be  regulated  by  the  industrial  commission,  which  has  power 
to  enter  and  inspect.1  Labor  camps  for  certain  kinds  of  work 
have  been  brought  under  regulation  in  certain  states,  as  Cali- 
fornia,2 New  York,3  and  Pennsylvania.4  In  California  the 
state  board  of  health  is  ordered  to  condemn  any  camps  which 
are  dangerous  to  public  health. 

c.  Company  Stores.  The  "truck"  system,  or  "truck"  in 
English  usage,  is  the  term  which  denotes  payment  in  kind, 
or  otherwise  than  in  cash.5  In  the  United  States  this  is 
generally  treated  under  such  terms  as  "store  orders,"  "pay- 
ment in  scrip,"  or  "company  stores."  Legislation  respecting 
the  truck  system  falls  into  three  classes:  (i)  laws  that  would 
eliminate  it  altogether,  at  least  in  business  establishments 
where  it  is  a  real  evil,  such  as  mining,  manufacturing,  and 
railroad  corporations;  (2)  laws  which  permit  the  system,  but 
which  regulate  the  prices  charged  and  the  quality  offered; 
(3)  laws  which  allow  the  institution  to  exist,  but  which  en- 
deavor to  eliminate  coercion  of  employees  to  make  use  of  the 
system. 

Among  the  first  class  would  come  the  laws  of  many  of  the 
leading  industrial  states,  such  as  Maryland,  Massachusetts, 
New  Jersey,  New  York,  and  Pennsylvania,  and  France  of  the 
European  countries — the  latter  having,  perhaps,  the  most 
complete  law  aiming  at  the  abolition  of  the  entire  system.6 

The  second  class  includes  Connecticut,  Indiana,  and  Vir- 


1  New  York,  Laws  1913,  C.  195. 

2  California,  Laws  1913,  C.  182. 

3  New  York,  Laws  1913,  C.  195. 

4  Pennsylvania,  Laws  1915,  No.  397,  Sec.  18. 

5  Great  Britain,  Departmental  Committee  on  the  Truck  Acts,  Report, 
1908,  p.  4. 

6  Bulletin  of  the  International  Labor  Office,  Vol.  V,  1910,  p.  377;    Act 
suppressing  truck  shops  and  prohibiting  employers  from  selling,  directly 
or  indirectly,  to  their  workmen  and  employees  supplies  and  goods  of 
any  kind,  March  25,  1910. 


56         PRINCIPLES  OF  LABOR  LEGISLATION 

ginia.  Here  prices  must  not  be  unreasonable,  or  higher  to 
the  employees  than  to  others  who  are  not  employees.  Of 
course,  if  the  town  should  be  owned  by  the  corporation,  the 
law  could  not  have  much  effect,  and,  for  that  matter,  no  anti- 
truck  legislation  can  accomplish  much  for  the  laborer  in  a 
town  where  the  land  and  buildings  are  all  owned  by  the 
employing  corporation. 

In  the  third  class  would  fall  the  laws  of  a  dozen  other  states, 
mainly  in  agricultural  areas,  and  the  laws  of  practically  all 
the  foreign  countries,  omitting  Holland  and  Italy,  which  have 
no  such  general  laws. 

The  last  two  groups  have  this  in  common,  that  both  regu- 
late prices.  Although  penalties  provided  seem  to  be  ample, 
yet  in  the  United  States  the  administrative  features  are  weak, 
as  typified  by  the  case  of  Colorado,1  where,  if  the  attorney- 
general  should  fail,  neglect,  or  refuse  to  act  after  a  demand  by 
a  responsible  party,  any  citizen  has  a  right  to  institute  pro- 
ceedings upon  giving  bonds  for  cost  of  suit.  Obviously,  the 
workman  is  in  no  position  to  give  bonds  or  to  bring  suit,  for 
he  can  afford  neither  the  expense  nor  the  loss  of  the  job 
which  such  a  procedure  would  entail.2 

(5)  Deductions 

The  problem  of  deductions  from  wages  involves  (i)  de- 
ductions in  respect  to  fines,  (2)  deductions  as  payment  for 
damages,  (3)  deductions  for  use  of  material  and  tools,  (4) 
deductions  for  benefits. 

Fines  are  imposed,  presumably,  for  disciplinary  reasons,  and 
vary  in  application  and  amount  in  different  establishments 
and  with  the  caprice  of  the  individual  employer.  They  may 
not  always  be  a  real  deterrent,  but  may  on  the  other  hand 
lead  to  carelessness,  suggesting  to  the  worker  that  he  has  paid 
for  what  he  has  done.  They  may  be  unfairly  imposed,  creat- 
ing a  sense  of  injustice  and  irritating  the  workers,  and  they 


1  Colorado,  Revised  Statutes,  1908,  Sec.  6995. 

2  Respecting  the  variety  of  decisions  on  the  constitutionality  of  this 
class  of  legislation,  see  Freund,  Police  Power,  1904,  pp.  305-308;    Clark, 
Law  of  the  Employment  of  Labor,  pp.  65-72;    Stimson,  Handbook  to  the 
Labor  Laws  of  the  United  States,  1896,  pp.  104-110. 


INDIVIDUAL  BARGAINING 

may  even  prove  to  be  a  source  of  petty  profits  to  the  unscru- 
pulous employer.  At  all  events,  they  decrease  the  income  of 
the  wage-earner. 

Deductions  as  payment  for  damages  may  be  for  bad  or 
negligent  work,  injury  to  materials  and  to  other  property  of 
the  employer.  Abuses  are  very  general,  for  the  employer  de- 
termines the  amount  of  damage  done  and  puts  the  price  on 
materials  spoiled.  It  is  humanly  impossible  to  do  perfect 
work,  and  no  matter  how  good  a  worker  may  be  at  his  trade, 
faults  will  occur  at  times.  Such  faults  are  part  of  the  manu- 
facturers' risk  and  should  be  dealt  with  as  such.  The  em- 
ployer is  himself  often  to  blame  for  setting  an  inexperienced 
hand  to  do  work  for  which  he  is  not  competent. 

The  case  of  charges  for  materials  and  tools  used  by  em- 
ployees involves  the  same  principle  as  in  the  previous  case. 
This  system  is  intended  to  secure  economy  in  the  use  of  ma- 
terial by  making  the  worker  responsible.  However,  from  the 
point  of  view  of  the  worker  the  system  is  objectionable  be- 
cause of  the  possibility  of  overcharge,  which  no  regulation, 
however  strict,  can  altogether  prevent. 

Deductions  for  benefits  received,  such  as  medical  atten- 
tion, hospital  care,  and  sickness  insurance,  are  allowed  by  all 
states  and  countries,  but  some  provide  (as,  for  instance,  New 
South  Wales  and  Western  Australia)  that  the  deduction  must 
not  exceed  the  value  of  the  thing  supplied,  and,  when  not 
stated,  this  is  generally  implied  by  all  countries.  Usually, 
also,  these  deductions  from  wages  are  in  pursuance  of  a 
previous  contract.  About  half  a  dozen  states,  including  New 
York,  New  Jersey,  and  Ohio,  specifically  legislate  against 
forced  contributions  for  certain  enumerated  benefits  as  a 
condition  of  employment.  Oregon  is  an  example  of  a  state 
which  has  legalized  deductions  for  hospital  benefits,  but  which 
requires  that  such  deductions  must  be  approved  by  the  in- 
dustrial accident  commission.1  A  new  development  in  the 
regulation  of  deductions  for  benefit  funds  is  found  in  a  type 
of  law  enacted  first  in  Minnesota  in  1919,  which  requires  em- 
ployers who  make  deductions  from  wages  for  the  purpose  of 
furnishing  medical  or  hospital  care,  or  accident,  sickness,  or 


Oregon,  Laws  1917,  C.  393. 


58         PRINCIPLES  OF  LABOR  LEGISLATION 

old-age  insurance,  to  secure  a  license  for  the  benefit  plan  from 
the  state  insurance  commissioner.1 

A  corporation  may  furnish  insurance,  lessening  many  hard- 
ships of  life  for  the  workingman  and  his  family;  but  this  in- 
surance is  enjoyed  only  as  a  result  of  continuous  employment, 
which  in  turn  often  involves  oppressive  dependence.  Espe- 
cially is  this  true  when  after  a  number  of  years  the  working- 
man  has  acquired  rights  which  may  be  lost  by  change  of 
employment.  Thus  the  burden  may  become  great  with  in- 
creasing years,  as  new  employment  with  insurance  becomes 
more  and  more  difficult  to  secure.2 

Provisions  are  found  in  some  laws,  in  connection  with 
employers'  liability,  and  sometimes  confined  to  railroads, 
which  regulate  or  prevent  the  payment  of  benefits  to  injured 
employees  as  a  means  of  escaping  from  such  liability.  About 
half  the  states,  the  Philippine  Islands,  and  the  federal  govern- 
ment have  enacted  that  no  contract  of  insurance  or  relief 
benefit  shall  constitute  a  bar  to  action  by  an  employee  for 
damages  in  case  of  injury  or  death.3  Florida  directly  says 
that  the  existence  of  a  relief  department,  by  which  the  em- 
ployer pays  benefits  to  the  workers,  shall  not  relieve  such 
employer  from  responsibility  in  case  of  death.4  It  is  some- 
times added,  however,  that  the  employer  may  set  off  against 
such  a  claim  any  sums  he  has  contributed  as  benefit.5  In 
Georgia  the  payment  of  wages  up  to  $100  on  the  death  of  an 
employee  is  a  sufficient  release  on  the  employer's  part.6 

In  the  act  of  1896  7  the  first  attempt  was  made  in  England 
to  protect  the  worker  from  harsh  and  unreasonable  fines. 
This  act  provided  that  there  must  be  formal  agreement  for 
the  fines;  that  the  fine  must  be  for  something  which  causes, 
or  is  likely  to  cause,  damage  or  loss  to  the  employer  or  inter- 
ruption or  hindrance  to  his  business ;  that  it  must  be  fair  and 
reasonable,  having  regard  to  all  the  circumstances  of  the 
case;  that  written  particulars  must  be  given  to  the  worker 

1  Minnesota,  Laws  1919,  C.  388. 

2  Ely,  Property  and  Contracts  in  Their  Relations  to  the  Distribution  of 
Wealth,  ,1914,  Vol.  II,  p.  714. 

3  See,  for  instance,  Ohio,  Laws  1910,  p.  195. 

4  Florida,  Laws  1914,  C.  6520. 

6  See,  for  instance,  Wisconsin,  Laws  1913,  C.  644. 

6  Georgia,  Code  1910,  Sees.  3134-3136.  7  59  and  60  Viet.,  C.  44. 


INDIVIDUAL  BARGAINING  59 

each  time  a  fine  is  exacted;  and,  finally,  that  there  shall  be 
a  register  of  fines  open  to  inspection.1 

In  the  United  States  there  is  little  legislation  dealing  with 
deductions  as  fines — a  dozen  states  in  all.2  Massachusetts 
says  fines  shall  not  be  levied  except  for  imperfect  work,3  and 
Louisiana  prohibits  them  except  when  employees  wilfully  or 
negligently  damage  goods  or  property  of  the  employer. 
Arkansas  and  Connecticut  regulate  discount  of  wages  because 
of  early  payment.  The  rest  of  the  states  permit  no  deductions 
unless  in  accordance  with  certain  procedure  and  with  full 
consent  of  workers.  The  Australasian  countries  have  no 
legislation  on  fines.  In  Austria,  Belgium,  Germany,  and 
Holland  fines  are  regulated  in  pursuance  of  a  previous  con- 
tract or  published  rules.  In  France  fines  cannot  exceed  one- 
fourth,4  and  in  parts  of  Switzerland  not  more  than  one-half, 
of  the  daily  wage.5  In  both  these  cases  as  well  as  in  Holland 
the  fines  must  go  toward  a  workers'  benefit  fund. 

A  clause  dealing  with  deductions,  not  levied  for  inferior 
work  or  for  destruction  of  property,  appears  in  Massachu- 
setts,6 where  no  deductions  are  to  be  made  from  the  wages 
of  women  and  minors  when  there  is  a  stoppage  of  work  owing 
to  a  breakdown  of  machinery,  and  the  workers  are  not  allowed 
to  leave  the  mill.  Foreign  countries,  while  they  sometimes 
limit  the  extent  of  deductions  for  materials  used,  still  do  not 
prohibit  them.  Although  the  labor  codes  generally  state  that 


1  Great  Britain,  Departmental  Committee  on  the  Truck  Acts,  Report, 
1908,  Vol.  I,  p.  6. 

2  Arkansas,    Connecticut,    Hawaii,    Indiana,    Louisiana,    Maryland, 
Massachusetts,  Michigan,  Mississippi,  New  Jersey,  Nevada,  Ohio,  and 
Texas. 

3  Massachusetts,  Laws  1909,  C.  514,  Sec.   114.     Under  the  terms  of 
this  act  fines  for  imperfect  weaving  may  be  levied  only  after  the  imper- 
fections have  been  pointed  out  and  the  amount  agreed  upon  by  both 
parties.     Apparently  these  provisions  did  not  sufficiently  protect  the 
weavers,  for  in  1911  another  act  was  passed  stating  that  "No  employer 
shall  impose  a  fine  upon  an  employee  engaged  at  weaving  for  imperfec- 
tions that  may  arise  during  the  process  of  weaving"  (Laws  1911,  C.  584). 
The  court,  however,  rendered  the  new  law  nugatory  by  its  limited  in- 
terpretation of  the  word  "fine."     (Commonwealth  v.  Lancaster  Mills, 
212  Mass.  315,  98  N.  E.  864  (1912).) 

4  Great  Britain,  Departmental  Committee  on  the  Truck  Acts,  Report, 
1908,  Vol.  I,  p.  95. 

6  Bulletin  of  the  International  Labor  Office,  Vol.  Ill,  1908,  p.  125. 
6  Massachusetts,  Laws  1909,  C.  514,  Sec.  119. 


6o         PRINCIPLES  OF  LABOR  LEGISLATION 

prices  shall  not  be  excessive,  this  is  a  goal  reached  only  by 
effective  administration. 


(6)  Mechanics'  Liens  and  Wage  Preference 

The  idea  that  wages  are  to  receive  special  treatment,  that 
they  are  to  be  paid  before  other  claims,  that  security  is  to 
be  given  for  their  payment,  and  that  they  shall  be  exempt  up 
to  a  certain  amount  from  execution,  underlies  legislation  on 
mechanics'  liens,  on  wages  as  preferred  claims,  and  on  wage  ex- 
emption. The  last  of  these  subjects  is  treated  elsewhere ; 1  here 
we  consider  the  preferential  treatment  of  the  laborer  as  creditor. 

Mechanics'  lien  laws  represent  a  stage  in  the  progress  to- 
ward wage  preference,  but  they  should  not  be  confused  with 
it.  They  are  founded  on  the  still  older  practice  of  giving 
contractors  and  builders  a  claim  for  payment  on  houses  they 
built  and  the  land  that  these  were  built  on. 

In  1830  the  first  mechanics'  lien  law  was  passed  by  the  New 
York  legislature  2  and  was  based  on  the  following  considera- 
tions, set  forth  in  a  committee  report : 

"The  committee  are  credibly  informed  that  the  severe  and 
heavy  losses  sustained  by  the  laboring  interests  have  arisen 
far  more  frequently  from  insufficient,  reckless  contractors, 
having  nothing  to  lose,  than  from  contractees.  .  .  .  They 
would  be  distinctly  understood,  declaring  it  as  their  un- 
divided opinion  that  a  mortgage  given  to  secure  the  payment 
of  money  lawfully  borrowed,  the  justice  of  which  no  one  will 
presume  to  dispute,  is  not  a  more  equitable  claim  than  that 
of  the  mechanic  and  laborer  on  the  dwelling-house  and  other 
buildings,  and  ground  on  which  the  same  are  erected,  so  far 
as  their  claim  and  demand  can  be  correctly  ascertained."  3 

Mechanics'  lien  legislation  seeks  to  give  the  laborer  a  claim 
for  the  payment  of  what  is  due  to  him,  backed  by  the  security 
of  the  structure  or  land  on  which  he  has  been  employed.  It 
exists  in  all  the  states,  and  extends  to  labor  performed  on 
public  works,  railroads,  in  mines,  and  on  the  land,  as  well  as 
to  lumbering,  construction  and  repair  of  vessels,  sawmilling, 

1  See  "Wage  Exemption,"  p.  47. 

2  New  York,  Laws  1830,  C.  330. 

3  New  York  Assembly,  Documents,  1830,  No.  24. 


INDIVIDUAL  BARGAINING  61 

and  other  occupations.  Such  liens  are  generally  ranked  as 
coming  before  other  payments;  and  in  many  cases  where 
contractors  and  subcontractors  are  entitled  to  benefit  in  a 
similar  way,  the  wage-earner's  claim  is  put  first.1 

The  next  step  was  the  provision  that  wages  should  be  con- 
sidered as  preferred  claims.  Nearly  all  the  states  and  the 
federal  government  have  laws  providing  that  in  cases  of 
assignments,  administrations,  and  receiverships  due  to  death 
or  bankruptcy,  the  wages  of  servants  and  employees,  up  to  a 
definite  sum  and  for  work  done  within  a  limited  time,  shall  be 
paid  next  after  fees,  costs,  and  taxes.2  France  has  a  law  giving 
preference  to  wage  payments.3  Great  Britain  and  her  colo- 
nies include  in  their  bankruptcy  laws  preferential  payment 
claims,  providing  usually  that  salaries  of  clerks  not  exceeding 
$500  and  wages  of  laborers  not  exceeding  $125  shall  have 
equal  claim  to  payment  with  taxes  and  expenses.  The  British 
bankruptcy  law  4  now  includes  national  insurance  contribu- 
tions and  amounts  due  for  workmen's  compensation  in  this 
category.  New  Zealand  has  a  bona  fide  contractors'  and 
workmen's  lien  act  resembling  the  American  legislation.5 


3.    THE  LABORER  AS  TENANT 
(i)  Classes  of  Agricultural  Workers 

Of  the  30,000,000  males  over  ten  years  of  age  engaged  in 
gainful  occupations  in  1910,  10,700,000,  or  more  than  one- 
third,  were  employed  in  agriculture.  Of  this  number  some- 
thing less  than  4,000,000  were  owners  operating  their  farms. 


1  California,  Colorado,  Idaho,  Illinois,  Louisiana,  Nevada,  New  Jersey, 
New  Mexico,  North  Dakota,  Ohio,  Oklahoma,  Oregon,  Pennsylvania, 
Washington,  West  Virginia. 

2  Alabama,    Arizona,    Arkansas,    California,    Oblorado,    Connecticut, 
Delaware,  Georgia,  Idaho,  Illinois,  Indiana,  Iowa,  Kansas,  Louisiana, 
Maryland,    Maine,    Massachusetts,    Michigan,    Minnesota,    Missouri, 
Montana,  Nebraska,  Nevada,  New  Hampshire,  New  Jersey,  New  Mexico, 
New  York,  North  Carolina,  North  Dakota,  Ohio,  Oregon,  Pennsylvania, 
Rhode  Island,  South  Dakota,  Texas,  Utah,  Washington,  Wisconsin,  the 
Philippine  Islands,  and  the  United  States. 

3 Lois,  Decrets,  Arretes  concernant  la  Reglementation  du  Travail,  Bk.  I, 
Ch.  II,  Sec.  II,  Art.  46,  47.  4  4  and  5  Geo.  5,  C.  59,  1914. 

6  New  Zealand,  Statutes  1892,  No.  25. 


62          PRINCIPLES  OF  LABOR  LEGISLATION 

More  than  2,000,000  were  tenants,1  and  4,700,000  were  la- 
borers working  for  owners  and  tenants.  But  these  figures  do 
not  represent  the  actual  proportions  of  wage-earners  and  em- 
ployers in  the  sense  of  the  wage  bargain  as  understood  in 
manufactures  and  other  industries.  Of  the  4,700,000  laborers, 
2,100,000  were  members  of  the  family  of  the  owner  or  tenant, 
and,  therefore,  their  labor  contracts  do  not  exhibit  the  strictly 
business  relation  of  employer  and  employee  in  the  modern 
wage  bargain.  Such  labor  problems  as  they  present,  from 
the  standpoint  of  legislation,  are  mainly  those  of  child  labor. 

a.  Hired  Laborers.  The  remaining  2,600,000  are  hired  la- 
borers, and  to  them  would  be  applicable  labor  laws  similar 
to  those  enacted  to  protect  laborers  in  other  industries.  How- 
ever, as  a  matter  of  fact,  labor  legislation  in  the  United  States 
has  had  very  little  to  do  with  farm  labor.  Laws  like  those 
regarding  workmen's  compensation,  safety,  health,  or  hours 
of  labor  sometimes  either  specifically  exclude  agricultural 
labor  from  their  operation  or  are  not  applicable.  Other  laws, 
such  as  laborers'  liens,  wage  exemption,  prohibition  of  in- 
voluntary servitude,  and  the  like,  are  so  general  or  funda- 
mental that  they  apply  to  farm  labor. 

Hired  laborers  are  of  two  classes,  considerably  different  in 
their  condition.  About  200,000  of  those  enumerated  appear 
to  be  "casual"  laborers,  hired  usually  by  the  day,  and  2,400,- 
ooo  are  hired  by  the  month  or  year.  The  number  of  casual 
laborers  is  doubtless  greatly  underestimated,  for  the  Census 
enumeration  is  made  in  April,  whereas  the  largest  number  of 
this  class  of  laborers  is  employed  during  the  harvest  seasons 
from  July  to  November.  They  are  enumerated  in  April  in 
other  industries,  and  are  the  migratory  laborers  who  appear 
in  the  logging-camps  and  ice  harvests,  as  well  as  temporary 
laborers  in  other  occupations. 

The  number  of  2,400,000  farm  hands  regularly  employed 
is  also  understateef,  because  an  uncertain  number  of  tenants 
are  really  hired  laborers  under  a  special  form  of  tenant  con- 
tract and  should  be  classed  as  employees  rather  than  tenants. 

1  Thirteenth  Census  of  the  United  States,  Vol.  IV,  1910,  p.  302.  This 
figure  is  obtained  by  combining  the  estimates  for  agriculture  and  animal 
husbandry.  The  Census  distinguishes  the  number  of  farms  operated  by 
owners  and  tenants,  not  the  number  of  oumers  and  tenants;  hence  these 
numbers  are  estimated. 


INDIVIDUAL  BARGAINING  63 

b.  Tenants.     The  Census  gives  the  numbers  of  two  kinds 
of  tenants,   712,000  "cash"  tenants  and  1,528,000  "share" 
tenants.1     By  cash  tenant  is  meant  not  one  who  pays  rent 
in  actual  cash,  but  one  whose  rent  is  definitely  fixed  and  cer- 
tain and  is  stipulated  in  advance  in  the  contract  either  in 
dollars,  in  labor,  or  in  products.     It  may  be  $7,  ten  bushels  of 
wheat,   or   100  pounds  of  cotton  per  acre.     Evidently  the 
"cash"  tenant  is  a  small  capitalist,  a  contractor,  or  an  em- 
ployer, since  he  invests  his  own  money  or  labor  and  takes  all 
of  the  risks  of  the  business.     His  gains  are  profits  rather  than 
wages;   his  bargain  with  the  landlord  is  a  price  bargain,  not 
a  wage  bargain. 

The  share  tenants  are  more  difficult  to  classify.  They  may 
be  either  small  capitalists  or  simply  farm  laborers,  and  the 
Census  does  not  distinguish  between  the  two.  A  share  tenant 
pays  the  landlord  as  rental  a  certain  share  of  the  product,  as 
one-half,  one- third,  or  one-quarter.  In  making  such  a  con- 
tract the  tenant  would  appear  to  be  a  contractor  or  capitalist, 
who  takes,  not  indeed  the  whole  risk  of  the  business,  but  a 
part  of  the  risk.  Such  is  the  case  if  he  actually  invests  his 
own  capital,  such  as  horses,  cattle,  implements,  and  so  on,  and 
runs  the  risk  of  losing  his  capital  on  the  chance  of  increasing 
it.  He  would  figure  the  outcome  as  profit  or  loss. 

c.  "Croppers"     But   if,    on   the   other   hand,    the   tenant 
"invests"  nothing  but  his  own  labor,  and  the  landlord  fur- 
nishes all  of  the  working  capital,  then  the  landlord  is  the 
capitalist-employer,  the  tenant  is  a  laborer,  and  the  bargain 
is  a  wage  bargain.     His  wages,  however,  are  not  the  stipulated 
daily  or  monthly  wages  received  by  a  "hired  man,"  but  they 
are  contingent  wages,  similar  to  those  paid  to  a  piece-worker, 
or,  rather,  to  a  sailor  on  a  whaling-ship,  who  receives  a  share 
of  the  product  at  the  end  of  the  voyage.     This  system  of  wage 
payment  is  spoken  of  as  "product  sharing,"  to  distinguish  it 
from  "profit  sharing."  2 

The  terms  "cropper"  and  "cropping  contract"  will  be 
used  herein  to  designate  this  kind  of  labor-tenant  under 


1  Thirteenth  Census  of  the  United  States,  Vol.  V,  1913,  p.  97.     This 
includes  among  "share"  tenants  those  given  in  the  "leases"  as  "share- 
cash" — an  intermediate  class. 

2  D.  P.  Schloss,  Methods  of  Industrial  Remuneration,  1891,  p.  249. 


64         PRINCIPLES  OF  LABOR  LEGISLATION 

the  system  of  share  tenancy.  The  terms  originated  in  the 
southern  states,  where  share  contracts  are  most  prevalent 
and  where  they  account  for  the  high  percentage  of  tenancy. 
In  1910,  66.8  per  cent,  of  the  tenancy  in  the  South  was 
share  tenancy,  including  both  farmers  and  laborers  on  shares, 
while  only  31.6  per  cent,  of  northern  and  1.6  per  cent,  of 
western  farms  were  operated  on  a  system  of  share  tenancy.1 
In  popular  usage,  the  term  "cropper"  includes  both  the  share 
farmer,  or  small  capitalist,  and  the  share  laborer.  Both  are 
croppers.  The  courts,  however,  have  settled  upon  the  term 
"cropper"  to  indicate  the  laborer,2  and,  adopting  this  usage, 
we  can  distinguish  the  cropper,  as  a  laborer  whose  wages  are 
measured  by  a  share  of  the  product  under  the  guise  of  a 
lease,  from  the  share  tenant,  as  a  small  capitalist  paying  rent. 

No  reliable  estimate  can  be  made  of  the  number  of  croppers. 
Indeed,  the  amount  of  capital  owned  by  the  farmer  may  be 
so  small  that  he  would  be  looked  upon  in  other  industries  as 
scarcely  more  than  a  mechanic  furnishing  his  tools  and  taking 
out  work  on  a  contract.  The  distinction  is  made  in  the  laws 
of  Alabama  3  which  define  a  share  tenant  as  one  who  owns  his 
team,  and  the  cropper  as  one  whose  landlord  owns  the  team. 
The  law  of  Texas,  enacted  in  1915,*  is  the  first  American  law 
designed  to  regulate  the  rents  of  share  tenants.  It  attempts 
to  prevent  the  landlord  from  charging  more  than  one-half 
of  the  value  of  the  product  if  he  furnishes  everything  except 
labor,  and  more  than  one-third  of  the  grain  and  one-fourth  of 
the  cotton  if  the  tenant  furnishes  all  of  the  operating  capital. 
Thus  it  distinguishes  and  regulates  both  the  rent  of  the 
farmer  and  the  wages  of  the  cropper. 

In  other  states,  where  the  legislature  has  not  attempted  to 
standardize  or  regulate  the  share  contracts,  the  courts  have 
been  compelled  to  decide  in  each  case  as  it  arises  whether  the 
laborer  is  a  cropper  working  for  wages  under  a  labor  contract, 
or  a  tenant-farmer  paying  rent  under  a  lease.  If  he  is  a 
cropper,  then,  in  case  of  dispute,  he  would  be  awarded  what 

1  Thirteenth  Census  of  the  United  States,  Vol.  V,  1913,  p.  113. 

2  Steel  v.  Frick,  56  Pa.  St.  172  (1867);    Harrison  v.  Ricks,  71  N.  C.  7 
(1874);    Almand  v.  Scott,  80  Ga.  95,  4  S.  E.  892  (1888);    Hammock  v. 
Creekmore,  48  Ark.  264,  3  S.  W.  180  (1886). 

3  Alabama,  Code  1907,  vSecs.  4742,  4743. 

4  Texas,  Laws  1915,  Article  5475  (3225). 


INDIVIDUAL  BARGAINING  65 

similar  laborers  in  the  locality  receive  as  wages,  regardless  of 
the  value  of  the  crop.  If  he  is  a  tenant-farmer  he  is  awarded 
his  share  of  the  crop,  regardless  of  what  he  might  earn  as  wages. 

In  order  to  decide  the  point,  the  courts  look  into  the  con- 
tract to  discover  which  party  has  the  control  and  direction 
of  the  farming  operations  and  the  legal  possession  of  the  crop 
at  the  end  of  the  season.  In  brief,  if  the  landlord  gives  orders 
as  to  cultivation,  and  has  legal  possession  and  the  right  to 
divide  the  crop  and  give  the  tenant  his  share,  the  contract  is 
a  labor  contract.1  But  if  the  tenant  is  "his  own  boss"  and 
has  legal  possession  of  the  crop,  and  gives  the  landlord  his 
share,  the  contract  is  a  lease.2  Generally  it  turns  out  that, 
in  proportion  as  the  tenant  advances  a  larger  and  larger  share 
of  the  working  capital,  the  contract  which  he  is  able  to  make 
is  a  lease  and  gives  him  not  only  a  larger  share  of  the  product, 
but  also  a  chance  to  make  a  profit  in  addition  to  wages ;  while 
the  smaller  the  proportion  of  capital  which  he  advances,  the 
less  is  his  share  and  the  more  nearly  the  contract  becomes  a 
labor  contract. 

If  the  contract  is  a  lease,  the  landlord  has  a  preference  lien 
on  the  crop  for  his  rent.3  If  it  is  a  labor  contract,  the  laborer 
has  a  laborers'  lien  on  it  for  his  wages.4 

(2)  Agricultural  Labor  Legislation 

The  foregoing  distinctions  indicate  differences  in  the  kind 
of  legislation  needed  to  protect  agricultural  labor  compared 
with  that  protecting  industrial  labor.  The  one  modifies  main- 
ly the  law  of  landlord  and  tenant,  the  other  that  of  employer 
and  employee.  Farming  is,  for  the  most  part,  a  small-scale 
industry,  and  there  is  opportunity  for  individuals  to  rise  into 


1  Shoemaker  v.  Crawford,  82  Mo.  App.  487  (1900);   Kelly  v.  Rummer- 
field,  117  Wis.  620,  94  N.  W.  649  (1903);    Bowman  v.  Bradley,  151   Pa. 
St.  351,  24  Atl.  1062  (1892);    Chase  i>.  McDonnell,  24  111.  237  (1860); 
Cutting  v.  Cox,  19  Vt.  517  (1847). 

2  Taylor  v.  Bradley,  39  N.  Y.  129  (1868);    Neal  v.  Brandon,  70  Ark. 
79,  66  S.  W.  200  (1902);  Almand  v.  Scott,  80  Ga.  95,  4  S.  E.  892  (1888). 

3  Randall  v.  Ditch,  123  la.  582,  99  N.  W.  190  (1904);  Hopper  v.  Haines, 
71  Md.  64,  18  Atl.  29,  20  Atl.  159  (1889);  Keoleg  v.  Phelps,  80  Mich.  466, 
45  N.  W.  350  (1890);    Wilson  v.  Stewart,  69  Ala.  302  (1881);    Noe  v. 
Layton,  69  Ark.  551,  64  S.  W.  880  (1910). 

4  Grisson  v.  Pickett,  98  N.  C.  54,  3  S.  E.  921  (1887). 
o 


66          PRINCIPLES  OF  LABOR  LEGISLATION 

the  position  of  independent  owners.  Beginning,  perhaps,  as 
a  casual  laborer,  the  next  step  is  that  of  the  farm  laborer  hired 
by  the  month  or  by  the  year,  and  living  with  the  family  of  the 
owner.  Next,  with  a  family  of  his  own,  the  steps  upward  are 
cropper,  share  tenant,  cash  tenant,  owner  with  mortgage,  and, 
finally,  ownership  unencumbered.  Legislation  may  aid  or 
obstruct  this  upward  movement. 

If  the  share  tenant,  whether  cropper  or  farmer,  is  not  per- 
mitted to  acquire  any  title  to  such  permanent  improvements 
as  he  adds  to  the  land,  his  condition  is  practically  the  same 
as  that  of  the  wage-earner,  who  has  no  title  to  his  own  prod- 
uct. Like  the  laborer,  he  tends  to  be  kept  permanently  in 
that  class.  This  is  the  condition  of  croppers  and  share 
tenants  in  the  United  States,  and  the  result  is  seen  in  their 
frequent  movement  from  farm  to  farm.  Such  tenants,  with- 
out title  to  their  " savings"  in  the  form  of  improvements,  can 
do  but  little  in  the  way  of  accumulating  the  capital  necessary 
to  rise  to  the  higher  steps,  and  their  instability  and  lack  of 
incentive  are  equally  serious  factors  in  their  own  deterioration 
and  in  that  of  the  soil. 

This  condition  received  legislative  attention  first  in  Eng- 
land. There  had  been  a  strong  agitation  favoring  the  enact- 
ment of  legislative  measures  to  compensate  tenants  for  im- 
provements made  on  the  landlord's  estate,  but  not  until  1850 
was  a  bill  introduced  into  Parliament  favoring  a  reasonable 
allowance  for  such  improvements.  The  bill  did  not  pass,  but 
similar  measures  were  brought  before  that  body  several 
times,  and  in  1875  an  act  was  obtained  stipulating  the  con- 
ditions under  which  an  outgoing  tenant  was  to  be  paid  for 
improvements.  However,  no  provision  was  made  compelling 
landlords  to  contract  under  the  law,  and  as  a  consequence  the 
statute  was  ineffective. 

In  1883,  a  new  bill,  known  as  the  agricultural  holdings  act, 
was  passed,  compelling  all  landlords  to  make  their  leases  with 
tenants  subject  to  compensation  for  improvements. 

Even  with  compensation  for  improvements  it  requires  time 
and  trials  for  the  tenant  or  purchaser  to  find  a  suitable  farm. 
Finding  the  tenant  a  farm  has  a  direct  relationship  with  the 
finding  the  laborer  his  job.1  The  importance  of  this  prob- 

1  See  "Public  Employment  Exchanges,"  pp.  297-307. 


INDIVIDUAL  BARGAINING  67 

lem  is  keenly  felt,  as  is  shown  in  an  investigation  made  by 
the  United  States  Department  of  Agriculture.1  In  accord- 
ance with  a  statute  enacted  in  1905,  New  York  state  2  estab- 
lished a  bureau  of  information  regarding  farms  for  rent  and 
sale  and  positions  for  agricultural  laborers.  It  was  claimed 
that  this  bureau  had  secured  work  for  about  15,000  men  on 
farms  during  the  first  three  and  a  half  years  of  its  existence.3 
The  bureau  also  issues  a  bulletin  dealing  with  the  farms  to 
be  disposed  of  throughout  the  state. 

Legislation  of  various  countries  also  provides  credit  agencies 
to  enable  the  tenant  or  farmer  to  acquire  advances  of  capital 
necessary  to  secure  permanency  in  his  position.  The  Schultze 
Delitsch  and  Raifleisen  banks  in  Germany  and  Austria,  the 
Credit  Foncier  in  France,  the  cooperative  banks  in  Italy  and 
Russia,  are  private  cooperative  credit  systems  operating  under 
government  supervision.4  New  Zealand,  Australia,  Ireland, 
and  the  provinces  of  Nova  Scotia  and  New  Brunswick  in 
Canada  make  loans  to  farmers,  as  do  also  Idaho,  Indiana, 
Iowa,  North  Dakota,  Oklahoma,  Oregon,  South  Dakota,  and 
Utah.5  Congress  in  1916  passed  a  rural  credit  law,  providing 
for  the  formation  of  a  cooperative  rural  credit  system  on  a 
national  scale. 

In  New  Zealand  the  "advances  to  settlers'*  system  is  ad- 
ministered by  the  New  Zealand  State-guaranteed  Advances 
Office.  Loans  are  repaid  to  the  advances  office  in  semiannual 
instalments  of  principal  and  interest.  Interest  is  charged  at 
the  rate  of  5  per  cent,  a  year,  but  this  rate  is  reduced  to  4^ 
per  cent,  if  payments  of  interest  and  principal  are  promptly 
made.6 

In  regulating  the  contract  of  landlord  and  tenant  the  prob- 
lem of  administration  is  similar  to  that  of  regulating  the 


1  United  States  Department  of  Agriculture,  Statistics  Bulletin  No.  94, 
1912,  "Supply  of  Farm  Labor,"  George  K.  Holmes. 

2  New  York,  Laws  1905,  C.  243. 

3  New  York  State  Commissioner  of  Agriculture,  Seventeenth  Annual 
Report,  1910,  p.  164. 

4  American  Commission  on  Agricultural  Cooperation  and  Rural  Credit 
in  Europe,  Report,  Part  I,  1913,  pp.  24,  181,  182,  237,  438,  63d  Congress, 
1st  Session,  Senate  Document  No.  214. 

5  Wisconsin  State  Board  of  Public  Affairs,  Bulletin  on  State  Loans  to 
Farmers,  1913,  p.  4. 

6  Ibid.,  pp.  145. 


68         PRINCIPLES  OF  LABOR  LEGISLATION 

contract  of  employer  and  employee.  At  first  the  matter  is 
left  to  the  courts  as  is  the  case  with  the  Alabama  and  Texas 
laws  and  the  British  legislation  above  mentioned.  Afterward 
it  is  found  that  the  tenant,  like  the  wage-earner,  is  unable  to 
avail  himself  of  the  aid  of  the  courts.  Then,  an  administrative 
body  or  commission  is  created  to  deal  with  each  contract  as 
it  arises.  In  the  case  of  the  tenant  contract,  it  is  the  highly 
inflated  value  of  land  that  offers  the  chief  obstacle  to  the 
laborer  or  cropper  in  advancing  to  the  position  of  owner. 
This  obstacle  was  attacked  in  Ireland,  in  1881,  by  the  crea- 
tion of  a  land  commission  to  fix  rents.  The  commission 
reduced  rents  15  to  20  per  cent.  Later,  when  the  govern- 
ment began  to  make  loans  at  low  rates  of  interest,  in  order  to 
encourage  farm  ownership,  and  then  began  to  compel  the 
landlords  to  sell  to  their  tenants,  the  land  commission  fixed 
the  fair  value  of  the  land.  Otherwise,  the  government  loans, 
at  3  per  cent,  interest,  would  have  served  only  to  inflate  land 
values  further,  and  the  landlord  would  have  absorbed  the 
benefit  intended  for  the  tenant.  Thus  the  Irish  Land  Com- 
mission does  for  landlord  and  tenant  what  a  public  utility 
commission  does  for  corporation  and  consumer,  or  a  mini- 
mum wage  commission  for  employer  and  employee.1 

4.    THE  LABORER  AS  COMPETITOR 

From  one  point  of  view  all  labor  legislation  has  as  its  ob- 
ject the  protection  of  the  laborer  as  a  competitor.  The  wage- 
bargaining  power  of  men  is  weakened  by  the  competition  of 
women  and  children,  hence  a  law  restricting  the  hours  of 
women  and  children  may  also  be  looked  upon  as  a  law  to 
protect  men  in  their  bargaining  power.  The  same  is  true  in 
a  different  way  of  industrial  education  and  free  schools,  for 
they  tend  to  reduce  the  competition  for  the  poorly  paid  jobs 
by  increasing  the  efficiency  and  the  wage-earning  power  of 
laborers  who  otherwise  would  be  serious  competitors.  But 
for  these  classes  of  legislation  the  protection  of  the  laborer  as 


1  See  Irish  land  acts  of  1881,  1885,  1903,  and  1909  in  the  English 
statutes;  Cant- Wall,  Ireland  under  the  Land  Acts;  American  Com- 
mission on  Agricultural  Cooperation  and  Rural  Credit,  Report, 
p.  865,  63d  Congress,  ist  Session,  Senate  Document;  No,  214. 


INDIVIDUAL  BARGAINING  69 

a  competitor  is  not  the  main  object.  There  are  two  classes  of 
legislation,  however,  of  which  it  may  be  said  that  the  main 
purpose  has  been  to  protect  the  American  workman  from 
competition  of  poorly  paid  laborers:  (i)  legislation  on  immi- 
gration, especially  the  laws  against  induced  immigration  and 
the  Chinese  exclusion  laws;  (2)  legislation  as  to  the  sale  of 
goods  manufactured  by  convicts. 

(i)  Protection  against  Immigrants 

Immigration  legislation  tends  more  and  more  to  develop 
along  protective  lines.  At  first  a  country  encourages  people 
to  come,  in  order  to  develop  its  resources ;  later  means  have  to 
be  found  to  safeguard  the  interests  of  the  existing  population. 

There  are  four  protective  purposes  which  are  served  by 
immigration  legislation.  The  first  is  the  social  protection  of 
the  community  generally.  It  is  obvious  that  every  state  will 
regard  certain  classes  as  objectionable ;  hence  the  prohibitions 
that  the  United  States  puts  on  the  landing  of  prostitutes  (since 
1875),  criminals  (1875),  professional  beggars  (1903).  Polyga- 
mists  (1891)  and  anarchists  (1903)  are  excluded,  partly  on 
social  and  partly  •  on  political  grounds.  The  exclusion  of 
Orientals  (1882),  again,  may  be  justified  on  the  principle  that 
they  are  unlikely  to  live  successfully  together  with  the  other 
races  in  America.  Since  political  offenders  are  on  a  different 
level  from  ordinary  offenders  against  the  law,  they  have  al- 
ways been  exempt  from  such  exclusion  (1875). 

A  secojKl  kind  of  protection,  that  of  the  national  health, 
is  afforded  by  the  laws  which  attempt  to  keep  out  those 
immigrants  suffering  from  contagious  disease  (1891),  es- 
pecially from  tuberculosis  (1907). 

A  third  type  of  excluded  class  is  made  up  of  those  persons 
who  are  looked  upon  as  constituting  a  danger  to  the  tax- 
paying  classes.  Legislation  designed  to  keep  out  persons  likely 
to  become  a  public  charge  (1882)  aims  at  protecting  the  tax- 
payer from  having  to  support  such  individuals.  The  fear  that 
lunatics,  idiots,  or  epileptics  may  also  become  charges  on  the 
community  is  chiefly  accountable  for  the  prohibition  (1891) 
against  their  coming  into  the  country.  Again,  the  repeated 
efforts  which  were  made  to  introduce  a  literacy  test,  culmi- 


70         PRINCIPLES  OF  LABOR  LEGISLATION 

nating  in  success,  over  the  President's  veto,  in  1917,  may 
have  been  inspired  partly  by  a  feeling  that  the  illiterate  are 
more  likely  to  become  destitute  than  others.  A  head  tax, 
generally  used  for  revenue  alone,  may  at  times  become  a  sort 
of  property  qualification.  In  the  United  States  it  was  at 
first  50  cents  (1882)  and  has  been  gradually  raised  to  $8 
(1917),  which  is  not  exactly  a  prohibitive  figure;  but  in 
Canada,  it  is  fixed  at  $500  for  Chinese  who  do  not  belong  to 
one  of  several  enumerated  professional  classes.1  Finally,  per- 
sons traveling  on  assisted  passages  who  cannot  prove  that 
they  do  not  belong  to  any  of  the  excluded  classes  are  not  al- 
lowed to  land  (1891);  after  being  dependent  on  others  such 
persons  might  easily  come  to  be  dependent  on  the  state. 

The  fourth  kind  of  protection  put  forth  by  the  law  over 
the  people  of  this  country  is,  from  the  standpoint  of  labor 
legislation,  the  most  important.  The  contrast  between  the 
protection  afforded  to  American  goods  in  the  commodity 
market  and  the  lack  of  any  such  effort  to  lessen  the  competi- 
tion of  labor  in  the  labor  market  was  early  noticed,  and  efforts 
have  been  made  since  1868  to  control  immigration  after  the 
example  of  the  tariff.  In  that  year  the  act  of  1864  encourag- 
ing immigration  was  repealed  2  and  a  start  was  given  to  a 
new,  negative,  policy  with  regard  to  immigration.  This  new 
policy  had  particular  reference  to  what  is  commonly  but  in- 
accurately called  "contract  labor,"  or  induced  immigration. 

a.  Induced  Immigration.  The  eighteenth  century  type  of 
immigration  had  been  very  largely  due  to  inducement,  some- 
times, indeed,  to  compulsion.  After  the  first  quarter  of  the 
nineteenth  century  indentured  labor  3  had  practically  ceased 
to  exist;  but  in  1864  a  stimulus  was  given  (owing  to  the  war- 
time scarcity  of  labor)  to  a  similar  system  of  bringing  numbers 
of  Europeans  here  to  work  under  contract,  by  a  law  4  which 
provided  that  such  contracts  should  be  valid  and  enforce- 
able in  the  United  States  courts.  This,  it  must  be  remem- 
bered, was  before  the  passage  of  the  thirteenth  amendment. 
Employers  took  advantage  of  the  law  in  order  to  bring  over 

1  Immigration  Commission,  Reports,  Vol.  XL,  1911,  p.  62. 

2  United  States,  Laws  1868,  C.  38,  Sec.  4. 

3  See  "Indentured  Service,"  p.  41. 

4  United  States,  Laws  1864,  C.  246. 


INDIVIDUAL  BARGAINING  71 

foreign  laborers.  Companies  were  formed  for  the  same  pur- 
pose; and  the  American  labor  market  was  threatened  with  a 
huge  oversupply  of  cheap  foreign  labor.  In  spite  of  agitation 
in  Congress  and  feeling  in  the  country,  it  was  not  until  1868 
that  this  act  was  repealed,  nor  until  1885  that  the  inducement 
of  immigration  was  formally  forbidden  by  law. 

The  contract  labor  law  of  1885  1  forbade  the  assistance  or 
encouragement  of  immigrants  coming  here  under  contract  to 
work.  The  act  applied  solely  to  laborers,  for  those  professions 
which  send  representatives  abroad  were  expressly  exempted, 
as  were  also  domestic  servants  and  skilled  workmen  in  new 
industries,  provided  labor  of  the  same  kind  could  not  be  ob- 
tained otherwise.  Individuals  were  allowed  to  assist  friends 
and  relatives  to  come  to  America.  This  successful  reversal 
of  policy  from  the  act  of  1864  was  due  in  a  large  measure  to 
the  efforts  of  the  Knights  of  Labor  and  the  trade  unions. 
It  answered  the  demand  of  the  working  class  as  a  whole,  and 
especially  that  part  of  it  which  was  organized,  for  effective 
protection  against  the  competition  of  the  masses  of  immi- 
grants who  were  now  entering  the  country.  The  number  of 
immigrants,  which  had  decreased  during  the  'seventies,  rose 
to  457,257  in  1880,  669,431  in  1881,  and  788,992  in  i882.2 
Another  immigration  act  was  passed  in  1891,  which  had  as 
one  of  its  objects  the  prevention  of  induced  immigration.3 
The  government  was  beginning  to  make  it  more  difficult  for 
a  man  who  had  previously  obtained  work  to  come  into  the 
United  States.  Transportation  companies  were  now  for- 
bidden to  solicit  or  encourage  immigration,  and  the  practice 
of  issuing  advertisements  in  foreign  countries  promising  em- 
ployment here  was  prohibited.  At  the  same  time  the  efforts  of 
Congress  to  make  the  contract  labor  law  a  real  deterrent  were 
met  by  a  silent  opposition  from  the  courts,  which  continued 
to  construe  the  law  strictly  and  to  treat  it  as  of  limited  applica- 
tion until  1907,  when  the  terms  of  the  law  itself  were  changed. 

But  during  the  'eighties  and  'nineties  the  change  from  the 
"old  immigration"  to  the  "new  immigration"  was  taking 
place;  that  is,  the  great  bulk  of  the  people  no  longer  came 

1  United  States,  Laws  1885,  C.  164. 

2  Immigration  Commission,  Reports,  Vol.  Ill,  1911,  p.  4. 

3  United  States,  Laws  1891,  C.  551. 


72         PRINCIPLES  OF  LABOR  LEGISLATION 

from  Germany,  the  United  Kingdom,  and  Scandinavia,  but 
from  southern  Italy,  Austria-Hungary,  Russia,  and  latterly 
Greece.  These  people  had,  in  general,  a  lower  standard  of 
life  than  the  Americans  and  the  earlier  immigrants.  While 
it  is  true  that  in  many  cases  where  they  replaced  native  labor 
this  adjustment  was  favorable  to  the  Americans,  in  that  these 
were  raised  thereby  to  more  responsible  and  better  paid  posi- 
tions, or  else  went  farther  west  or  southwest,  as  did  the 
coal-miners,  attracted  by  better  wages,  still  it  cannot  be 
denied  that  the  newer  immigrants  were  as  a  rule  willing  to 
work  for  less  wages,  to  endure  harder  conditions,  and  to  lower 
the  general  plane  of  living  of  unskilled  laborers.  It  is  on 
account  of  this  displacement  of  American  labor  by  immigrant 
labor,  a  phenomenon  which  has  been  at  times  emphasized  to 
the  point  of  exaggeration,  that  the  working  class  has  so  eagerly 
desired  the  restriction  of  immigration ; l  and  the  contract  labor 
laws  were  the  first  attempt  to  do  this.  It  was  not  necessary 
to  enforce  the  law  against  farm  laborers,  because  from  them 
no  such  competition  was  feared. 

A  later  revision  of  the  contract  labor  law  was  made  in 
the  general  immigration  act  of  1917. 2  This  time  the  scope 
of  the  words  "contract  laborer"  was  enlarged  to  include  any 
one  "induced,  assisted,  encouraged,  or  solicited"  to  immigrate 
by  any  kind  of  promise  or  agreement,  express  or  implied,  true 
or  false,  to  find  employment.  The  Immigration  Commission 
of  1911  said  of  even  the  less  sweeping  law  of  1907  that  "it  is 
difficult  to  conceive  how  the  letter  of  the  law  respecting  the 
importation  of  contract  laborers  could  be  more  stringent  than 
at  present";  and  in  consequence  of  this  trend  in  the  law  the 
courts  have  been  obliged  to  give  up  their  attitude  of  considering 
as  prohibited  by  the  law  only  those  transactions  in  which  a 
contract  could  be  proved. 

The  cases  on  the  subject  bring  out  the  increasing  strict- 
ness of  the  law.  In  United  States  v.  Edgar,3  decided  under 
the  law  of  1885,  the  prosecution  of  an  employer  who  had  im- 
ported labor  from  abroad  failed,  because  no  contract  could 

1  For  a  discussion  of  the  economic  effects  of  immigration  from  opposite 
points  of  view,  see  J.  W.  Jenks  and  W.  J.  Lauck,  Ttie  Immigration  Prob- 
lem, and  I.  A.  Hourwich,  Immigration  and  Labor. 

2  United  States,  Laws  1916-1917,  C.  29. 

3  United  States  v.  Edgar,  I  C.  C.  A.  49,  48  Fed.  91  (1891). 


INDIVIDUAL  BARGAINING  73 

be  proved.  In  United  States  v.  Gay  1  it  was  held  that  the 
law  of  1891  was  intended  to  exclude  only  unskilled  manual 
laborers.  After  the  act  of  1907,  as  already  pointed  out,  these 
doctrines  could  no  longer  be  held,  and  in  1914  we  had  a  case 
in  which  a  fine  of  $1,000  was  exacted  for  each  of  forty-five 
contract  laborers  brought  across  the  Mexican  border  for  the 
purpose  of  helping  to  construct  a  railway.2 

That  laws  against  induced  immigration,  although  in  force 
for  thirty-five  years,  have  done  very  little  to  protect  the  Ameri- 
can laboring  man  from  the  competition  of  immigrants  is  evi- 
dent from  two  facts:  the  enormous  numbers  of  unskilled 
laborers  who  have  since  entered  the  United  States,  and  the 
efforts  that  were  constantly  being  made  to  secure  other  means, 
notably  a  literacy  test,  for  creating  a  "labor  protective  tariff."  3 
With  regard  to  the  first  point,  it  may  be  mentioned  that  during 
the  fiscal  year  ending  June  30,  1914,  the  latest  before  the  war, 
the  number  of  "laborers"  who  entered  the  United  States  was 
226,407,  and  the  number  of  skilled  workmen  was  173, 208. 4 

In  Australia  a  law  5  similar  to  the  American,  but  less  rigid, 
excludes  persons  seeking  to  enter  the  country  on  a  contract 
of  employment.  The  minister  for  external  affairs  may,  how- 
ever, admit  such  an  immigrant  (a)  if  the  contract  is  not  made 
in  contemplation  of  affecting  an  industrial  dispute;  (b)  if 
the  remuneration  and  other  conditions  of  employment  are  as 
advantageous  as  those  current  for  workers  of  the  same  class 
at  the  place  where  the  contract  is  to  be  performed.  A  further 
clause,  which  applies  only  to  persons  not  British  subjects  or 
their  descendants,  and  therefore  to  very  few  emigrants  to 
Australia,  provides  that  there  must  be  difficulty  in  ttttwern- 
ployer's  obtaining  within  the  Commonwealth  a  worker  of  equal 


1  United  States  v.  Gay,  37  C.  C.  A.  46,  95  Fed.  226  (1899). 

2  Grant  Bros.  Construction  Co.  v.  U.  S.,  232  U.  S.  647,  34  Sup.  Ct.  452 
(1914). 

3  In  the  effort  to  secure  the  desired  protection  by  another  method,  the 
people  of  Arizona  in  1914  enacted  by  initiative  and  referendum  a  law 
requiring  employers  of  more  than  five  persons  to  engage  at  least  80  per 
cent,  qualified  electors  or  citizens.     This  statute  was  declared  uncon- 
stitutional by  the  United  States  Supreme  Court  as  denying  the  equal 
protection  of  the  laws.     (Truax  v.  Raich,  239  U.  S.  33,  36  Sup.  Ct.  7 

(1915)- 

4  Commissioner  General  of  Immigration,  Report,  1914,  pp.  40,  41. 

5  Act  No.  19  of  1905. 


74         PRINCIPLES  OF  LABOR  LEGISLATION 

skill  and  efficiency.  The  states  belonging  to  the  Common- 
wealth offer  assisted  passages  to  agricultural  workers  and  to 
domestic  servants,  whose  ranks  are  by  no  means  overcrowded.1 

In  the  Union  of  South  Africa,  the  government  endeavors 
to  maintain  good  conditions  in  the  labor  market  by  preventing 
unemployment  and  directly  assuring  itself  that  the  competi- 
tion of  every  immigrant  is  "fair."  Every  immigrant  of  Euro- 
pean descent  belonging  to  the  working  class  is  obliged  to  have 
a  certificate,  stating  that  he  has  been  engaged  to  serve,  im- 
mediately upon  his  arrival,  an  employer  of  repute  at  adequate 
wages,  for  a  period  of  time  to  be  fixed  in  said  conditions,  but 
not  to  be  less  than  one  year.2  The  terms  of  this  law  are  ex- 
actly the  opposite  of  the  American  provisions  against  induced 
labor;  yet  the  idea  of  protecting  the  laborer  from  competition 
with  an  immigrant  of  lower  standards  is  common  to  both. 

b.  Exclusion  of  Orientals.  The  danger  to  the  laborer  from 
the  competition  of  European  immigrants  may  be  lessened 
and  gradually  done  away  with  as  these  become  Americanized. 
Trade  unionism,  especially,  is  a  force  which  is  giving  the  im- 
migrant the  same  standards  as  the  American.  In  the  case 
of  the  Oriental  races,  however,  this  "happy  ending"  to  the 
story  is  not  to  be  expected.  Individual  Chinese,  Japanese, 
and  Hindus  may  settle  down  to  lead  Western  lives  and  adopt 
Western  ideas;  but  the  great  mass  of  their  countrymen  who 
emigrate  do  so  without  any  desire  to  change  their  ways  of 
living.  It  is  a  well-known  fact  that  these  ways  are  much  more 
economical  than  those  of  an  American  or  European,  and  that 
therefore  an  Oriental  can  accept  wages  which  to  a  white  man 
would  mean  starvation.  No  doubt  race  feeling  enters  to 
some  extent  into  the  composition  of  laws  excluding  Chinese, 
Japanese,  and  Hindus;  but  more  deep-lying  is  the  fear  of  the 
competitive  worker.  This  is  shown  by  the  fact  that  the 
employing  classes  welcome  Orientals,  whom  they  find  efficient, 
polite,  and  contented.  Miss  Eaves  says  of  the  early  Cali- 
fornian  opposition  to  the  Chinese: 

The  legislation  on  Oriental  labor  sprang  from  the  people.  .  .  . 
The  laws  .  .  .  were  the  product  of  the  actual  experiences — sometimes 

1  Commonwealth  of  Australia,  Official  Yearbook,  1914,  p.  1027. 

2  South  Africa,  Laws  1913,  No.  22  (immigrants'  regulation  act). 


INDIVIDUAL  BARGAINING  75 

of  the  race  prejudices — of  those  in  the  humblest  ranks  of  society. 
For  thirty  years  the  working  people  persistently  made  known  their 
needs,  winning  at  last  a  practically  unanimous  support  in  the  state,  so 
that  all  classes  united  to  urge  the  tardy  federal  legislation  for  exclusion.1 

The  report  of  the  federal  Joint  Special  Committee  to  In- 
vestigate Chinese  Immigration,  which  was  published  in  1877, 
is  filled  with  complaints  against  the  Chinese  on  the  part  of 
American  workingmen  who  asserted  that  they  could  not  com- 
pete with  Chinese.  A  point  very  often  made  was  that  the 
average  American  workman  is  a  married  man  with  a  family, 
while  Chinamen  would  come  to  California  alone  and  expect 
to  earn  only  what  would  keep  a  single  man.  Others  said  that 
Chinese  labor  was  less  efficient  than  white  labor.2  One  wit- 
ness asserted  that  he  used  to  earn  from  $20  to  $21  a  week  at 
broom-making,  but  that  in  competition  with  the  Chinese  he 
could  make  only  $i4.8g.3 

It  was  this  agitation  by  the  people  on  the  Pacific  coast,  who 
had  learned  to  fear  the  industrial  competition  of  the  Chinese, 
that  led  to  federal  legislation  and  finally  to  the  exclusion  of 
the  Chinese  laborers.  The  Burlingame  Treaty  of  1868  had 
settled  nothing,  for  it  merely  proclaimed  the  right  of  the 
Chinese  to  settle  where  they  would,  while  denying  them  the 
right  of  naturalization.4  Another  treaty,  concluded  in  1880, 
gave  the  American  government  the  right  "to  regulate,  limit, 
or  suspend"  Chinese  immigration,  but  not  absolutely  to  pro- 
hibit it.  Two  years  later  the  exclusion  of  Chinese  laborers 
went  into  effect,  when  an  act  was  passed  forbidding  them  to 
enter  the  country  for  the  next  ten  years.5  This  policy  has 
been  kept  up  ever  since  in  laws  and  treaties  which  have 
gradual!}'  grown  more  strict.  On  the  same  principle  Jap- 
anese laborers  who  are  not  coming  to  the  United  States 
in  order  "to  resume  a  formerly  acquired  domicile,  to  join  a 
parent,  wife,  or  children  residing  there,  or  to  assume  active 
control  of  an  already  possessed  interest  in  a  farming  enter- 


1  Lucile  Eaves,  History  of  California  Labor  Legislation,  1910,  p.  115. 

2  Joint  Special  Committee  to  Investigate  Chinese  Immigration,  Report, 
pp.  346,  347,  44th  Congress,  26.  Session,  Senate  Report  No.  689,  1877. 

*  Ibid.,  p.  360. 

4  Immigration  Commission,  Reports,  Vol.  XXXIX,  1911,  p.  69. 

6  United  States,  Laws  1882,  C.  126. 


76         PRINCIPLES  OF  LABOR  LEGISLATION 

prise  in  this  country,"  are  refused  passports  by  the  Japanese 
government,  in  accordance  with  a  treaty  agreement  of  1907. l 

The  British  self-governing  colonies  have  had  a  similar  ex- 
perience to  that  of  the  United  States,  and  have  met  it  by 
practically  the  same  means.  Canada  excludes  the  Chinese 
laborers  by  making  them  pay  a  head  tax  of  $500 ;  the  Japanese, 
by  an  agreement  with  the  government  of  that  country,  that 
not  more  than  400  Japanese  are  to  enter  Canada  annually; 
and  the  Hindus,  by  a  head  tax  of  $200  and  the  reo^iirement 
that  they  shall  come  by  a  "continuous  journey"  from  India, 
which  cannot  be  done  by  the  existing  routes.2  Australia  and 
New  Zealand  use  a  literacy  test  to  keep  out  Chinese,  who 
must  write  fifty  words  (Australia)  or  a  signed  application  for 
admission  (New  Zealand)  in  a  European  language.3 

c.  The  Literacy  Test.  The  British  self-governing  colonies 
have  found  in  the  literacy  test  a  weapon  against  Asiatic  im- 
migration. In  this  country  a  long  struggle  was  made  to  apply 
to  all  immigrants  a  test  of  this  kind,  succeeding  in  1917  over 
the  Presidential  veto  which  had  three  times  defeated  earlier 
Congressional  action  in  this  direction. 

First  introduced  unsuccessfully  in  Congress  in  1892,  the 
principle  of  the  literacy  test  was  embodied  in  a  bill  of  1895 
and  survived  through  numerous  modifications  until  two  years 
later  it  had  passed  the  House  and  Senate.4  The  intention  of 
the  bill  was  to  keep  out  not  only  the  criminal  and  pauper 
classes,  but  also  the  southern  and  eastern  Europeans,  very 
many  of  whom  were  illiterate.  President  Cleveland,  however, 
vetoed  it  as  being  un-American  and  illiberal,  and  also  as 
unlikely  to  have  any  good  effect  on  the  prevailing  depression 
or  on  violence  in  labor  troubles  and  racial  degeneration.  The 
House  passed  the  bill  over  the  President's  veto  by  a  majority 
of  193  to  37,  but  no  action  was  taken  in  the  Senate  and  the 
bill  was  consequently  not  enacted  into  law. 

The  next  attempt  to  secure  a  literacy  test  was  made  under 
the  Taft  administration.  A  bill  was  introduced  into  the 
Senate  in  1911,  containing  a  clause  which  was  practically 


1  United  States,  Laws  1907,  C.  1134. 

2  Immigration  Commission,  Reports,  Vol.  XL,  p.  75. 

3  Ibid.,  Abstracts  of  Reports,  Vol.  II,  pp.  633,  637. 
«  Ibid.,  Reports,  Vol.  XXXIX,  p.  47. 


INDIVIDUAL  BARGAINING  77 

copied  from  the  bill  mentioned  before.1  It  was  passed  by  the 
House  and  Senate,  but  President  Taft  vetoed  it,  February  14, 
1913.  The  Senate  thereupon  passed  the  bill  again,  but  in 
the  House  the  vote  fell  short  of  the  required  two-thirds  ma- 
jority and  the  bill  therefore  had  to  drop.2 

Another  bill  including  a  literacy  test  of  the  usual  type 
was  introduced  in  the  House  in  igi3.3  The  House  and 
Senate  voted  favorably  on  this  bill  and  it  went  to  President 
Wilson  on  January  16,  1915.  He  returned  the  bill  with  his 
veto,  giving,  as  his  reason,  that  this  bill  embodied  a  radical 
departure  from  the  traditional  policy  of  the  country,  in  almost 
entirely  removing  the  right  of  political  asylum  and  in  ex- 
cluding those  who  have  missed  the  opportunity  of  education, 
without  regard  to  their  character  or  capacity.  Moreover, 
he  did  not  believe  that  the  bill  represented  the  will  of  the 
people,  and  for  these  reasons  he  refused  to  sign  it.4  The 
House  again  could  not  raise  a  two-thirds  majority  in  favor 
of  the  bill,  and  so,  like  its  predecessors,  it  came  to  nothing.5 

Finally  in  1916  an  immigration  measure  containing  the 
literacy  test  was  again  introduced  and  passed  by  Congress. 
It  was  again  vetoed  by  President  Wilson,6  but  this  time  the 
necessary  two-thirds  majority  was  secured  in  both  Houses  to 
adopt  it  over  his  veto,  and  it  became  a  law  on  February  5, 
I9i7-7  Persons  physically  capable  of  reading,  and  over  six- 
teen years  of  age,  are  excluded  if  they  cannot  read  some  lan- 
guage, except  near  relatives  of  admissible  aliens  and  those 
seeking  entrance  to  escape  religious  persecution.  During  the 
first  fiscal  year  after  its  going  into  effect,  the  reading  test 
served  to  exclude  1,598  immigrants.8  However,  the  sharp 
drop  of  immigration  due  to  the  war — 110,618  entering  in  the 
year  ending  June  30,  1918,  as  compared  with  1,403,081  in  the 
year  ending  June  30,  1914 — indicates  that  the  exclusion  of 
new-comers  will  be  a  much  less  pressing  question  for  a  number 


1  Congressional  Record,  Vol.  XLVII,  1911,  p.  3669. 

2  Ibid.,  Vol.  XLIX,  1913,  p.  3429. 

3  Ibid.,  Vol.  L,  1913,  p.  2013. 

4  63d  Congress,  3d  Session,  H.  R.  Document  No.  1527. 

5  Congressional  Record,  Vol.  LII,  1915,  p.  3078. 

6  64th  Congress,  2d  Session,  H.  R.  Document  No.  2003. 

7  United  States,  Laws  1916-1917,  C.  29. 

8  Commissioner  General  of  Immigration,  Report,  1918,  p.  23. 


78         PRINCIPLES  OF  LABOR  LEGISLATION 

of  years.  In  November,  1919,  the  first  official  International 
Labor  Conference  called  under  the  League  of  Nations,  in 
session  at  Washington,  adopted  as  part  of  its  proposed  pro- 
gram on  unemployment  the  recommendation  that  ' '  recruiting 
of  bodies  of  workers  in  one  country  with  a  view  to  their  em- 
ployment in  another  country  should  be  permitted  only  by 
mutual  agreement  between  the  countries  concerned  and  after 
consultation  with  employers  and  workers  in  each  country  in 
the  industries  concerned."  x 


(2)  Protection  against  Convict  Labor 

Varying  estimates  have  been  made  at  different  times  of 
the  number  of  convicts  engaged  in  productive  industry  in  the 
United  States.  Perhaps  one  of  the  best  estimates  was  that 
of  51,000  made  by  the  Commissioner  of  Labor  in  I905.2  The 
value  of  goods  sold  within  and  outside  the  state  in  which  the 
labor  was  performed  amounted  to  $27,000,000  in  the  same 
year.3  The  industries  mainly  affected  by  the  competition  of 
convict  labor  are  the  manufacture  of  boots  and  shoes,  cloth- 
ing, especially  workmen's  shirts  and  overalls,  furniture, 
brooms  and  brushes,  stove  hollow  ware  and  stoves,  harness 
and  whips,  binder  twine,  cooperage  (in  Chicago),  farm  wagons, 
and  stone  work.  Wages  paid  to  convicts  by  private  contractors 
who  hire  them  from  the  state  are,  of  course,  very  low.  The 
maximum  amount  reached  under  the  contract  system  is  about 
75  cents  a  day. 

The  problem  raised  by  permitting  convicts'  work  to  be  sold 
in  the  open  market  in  competition  with  the  product  of  free 
labor  has  been  expressed  as  follows : 

The  two  investigations  (of  the  Bureau  of  Labor,  1885  and  1895) 
showed  that  the  convict  product  as  a  whole  was  very  small  when 
compared  with  the  entire  product  of  free  labor  in  the  United  States. 
But  the  employers  of  free  labor  and  their  workmen  unite  in  affirming 
that  when  any  convict-made  product  is  placed  in  competition  with 
the  product  of  free  labor  the  market  becomes  demoralized,  even  a 

1  American  Labor  Legislation  Review,  Vol.  IX,  No.  4,  December,  1919, 
pp.  533,  534. 

2  United   States  Commissioner  of  Labor,    Twentieth  Annual  Report, 
1904,  p.  1.1.  3  Ibid.,  pp.  474,  475- 


INDIVIDUAL  BARGAINING  79 

small  sale  affecting  prices  far  out  of  proportion  to  the  amount  of 
the  sale.  .  .  .  Every  state  objects  to  being  made  the  market  for  con- 
vict-made goods  produced  in  other  states.1 

The  prisons  do  not  stand  in  the  normal  relation  of  producers 
to  the  commodity  market;  they  go  on  working,  regardless  of 
the  fluctuations  of  business;  they  can  undersell  any  com- 
petitor, for  they  do  not  have  to  meet  the  usual  costs  of  pro- 
duction and  in  the  last  resort  they  can  always  fall  back  on 
the  taxes.  Manufacturers  sometimes  assert  that  they  do  not 
feel  the  competition  of  convict  labor  except  in  times  of  de- 
pression.2 

The  employer  of  "free  labor"  can  meet  this  competition 
in  several  ways.  He  may  adulterate  or  otherwise  lower  the 
quality  of  his  goods  so  as  to  lower  his  cost  of  production,  or 
he  may  give  up  the  particular  branch  of  his  trade  in  which 
the  competition  of  convict  labor  is  felt.  Instances  can,  how- 
ever, be  given  of  whole  industries  which  have  been  practically 
absorbed  by  convict  labor  in  certain  localities,  such  as  the 
cooperage  industry  in  Chicago  during  the  'eighties. 

The  problem  of  convict-labor  competition  takes  an  even 
more  serious  aspect  when  it  is  considered  in  respect  to  inter- 
state commerce.  Pressure  brought  to  bear  on  the  govern- 
ment of  any  one  particular  state  is  often  successful  in  getting 
a  law  passed  forbidding  the  sale  of  convict-made  goods  within 
that  state;  but  this  only  means  that  convict-made  products 
from  other  states  are  brought  in  and  sold  there.  In  fact, 
the  publicity  given  to  the  system  of  convict  contract  labor 
when  a  bill  to  abolish  it  is  being  discussed  is  apt  to  attract 
attention  to  the  fact  that  a  new  market  will  be  opened  for  the 
convict-made  goods  of  other  states.  It  has  been  estimated 
that  only  34.7  per  cent,  of  convict-made  goods  are  sold  within 
the  state  of  origin,  and  65.3  per  cent,  in  other  states.3 

Many  of  the  states  have  laws  designed  to  put  some  restraint 
on  competition  between  convict  and  free  labor.  No  law  has, 
however,  yet  been  enacted  approaching  in  simplicity  a  pro- 


1  United  States  Commissioner  of  Labor,   Twentieth  Annual  Report, 
pp.  ii,  23. 

2  Ibid.,  p.  59  (statement  of  a  Minnesota  shoe  manufacturer). 

3  Ibid.,  p.  497. 


So         PRINCIPLES  OF  LABOR  LEGISLATION 

posal  made  in  the  63d  Congress,  that  the  convict  should  be 
put  to  remunerative  work,  charged  with  his  upkeep,  and  have 
his  labor  credited  to  him;  that  he  should  in  fact  be  put  on 
the  same  competitive  footing  as  an  ordinary  laborer.1  The 
laws  bearing  directly  on  the  subject  of  competition  are  for 
the  most  part  of  recent  origin  and  may  be  divided  into  three 
main  classes:  (i)  The  general  statement  that  convicts  are 
not  to  be  employed  where  their  work  conflicts  with  free  labor 
(as  in  Illinois,  New  Jersey,  Minnesota);  (2)  the  prohibition 
of  convict  labor  in  certain  forms  of  industry — e.  g.,  the  manu- 
facture of  tin  cans  for  fruit-packing — (as  in  Iowa,  Maryland, 
Oregon,  Wyoming) — Washington  has  a  provision  the  reverse 
of  this,  by  which  it  refuses  to  allow  its  convicts  to  manufacture 
anything  save  jute  fabrics  and  bricks,  while  Arizona  provides 
that  convicts  shall  be  set  to  work  on  streets  and  highways, 
when  they  do  not  compete  with  free  labor;  (3)  the  distribu- 
tion of  convicts  among  diversified  lines  of  industry,  sometimes 
coupled  with  the  limitation  of  the  number  to  be  employed  in 
a  given  industry  (as  in  Indiana,  Massachusetts,  Nebraska, 
Ohio,  Pennsylvania).  A  few  other  states  have  adopted  dif- 
ferent plans.  California  has  a  constitutional  provision  for- 
bidding the  sale  of  convict-made  goods,  unless  specifically 
sanctioned  by  law.  Massachusetts,  in  addition  to  the  pro- 
vision mentioned  above,  stipulates  that  convict-made  goods 
must  be  sold  at  not  less  than  wholesale  prices.  The  con- 
stitution of  Michigan  forbids  the  teaching  of  a  trade  to 
convicts,  excepting  only  the  manufacture  of  such  articles  as 
are  mainly  imported  into  the  state.  More  recently  New  Jer- 
sey enacted  the  provision  that  prisoners  are  not  to  be  used 
on  public  work  to  replace  free  laborers  who  are  locked  out  or 
on  strike.2 

Indirect  methods  of  legislating  against  the  competition  of 
convict  labor  are  laws  providing  that  convict-made  goods  shall 
be  labeled,  as  in  Pennsylvania,  Montana,  and  other  states, 
or  that  dealers  in  such  goods  shall  have  a  license,  as  in  New 
York.  The  most  effective  kind  of  law  is  probably  the  pro- 
vision that  all  goods  manufactured  in  prisons  shall  be  for  the 
use  of  the  state  (the  "state  use"  system).  Backed  by  satis- 

1  Congressional  Record,  Vol.  LI,  1914,  p.  4294. 

2  New  Jersey,  Laws  1918,  C.  147. 


INDIVIDUAL  BARGAINING  81 

factory  experience  under  a  federal  executive  order  during  the 
waf,  the  movement  is  growing  to  employ  convicts  exclusively 
on  the  state  use  system,  at  wages  based  on  the  prevailing 
rate  in  the  locality. 

Federal  legislation  has  been  attempted  for  the  last  thirty 
years,  but  nothing  has  as  yet  been  accomplished.  In  the 
63d  Congress  the  proposal  was  made  to  subject  to  the  law 
of  a  state  convict-made  goods  imported  into  it,1  which,  it  was 
hoped,  would  check  interstate  commerce  in  these  goods. 
The  opinion  has  often  been  expressed  that,  if  such  a  law 
were  enacted,  the  competition  of  convict  labor  with  free 
labor  would  cease.  Up  to  the  present,  however,  the  attempts 
to  get  such  legislation  enacted  have  met  with  no  success. 

5.  LEGAL  AID  AND  INDUSTRIAL  COURTS 

We  have  seen  how  modern  legislation  has  attempted  to 
give  to  the  individual  wage-earner  increasing  privileges  and 
to  place  him  more  nearly  on  an  equality  with  his  employer. 
Yet  these  privileges  are  available  to  him  only  so  far  as  the 
state  actually  enforces  them.  We  shall  see  that,  in  the  case 
of  factory  legislation,2  the  early  statutes  assumed  that  the 
employee  would  initiate  proceedings  in  court,  with  the  aid 
of  the  ordinary  officers  of  law,  to  enforce  the  safety  and  health 
laws.  Not  until  many  years  had  passed  did  the  state  provide 
special  police,  the  factory  inspectors,  to  relieve  the  laborer 
of  this  impossible  obligation.  So  in  these  more  fundamental 
rights  growing  out  of  the  labor  contract  the  state  leaves  to 
the  laborer  the  duty  of  realizing  upon  them  through  the 
ordinary  means  of  prosecution  in  court. 

But  poverty,  ignorance,  and  the  technicalities  of  law  often 
combine  to  set  the  remedies  beyond  his  reach.  "From  birth 
to  death,"  says  a  report  of  the  New  York  Legal  Aid  Society,3 
"the  poor  man  is  the  prey  of  a  host  of  petty  swindlers.  He 
is  educated  to  believe  that  justice  is  free,  and  he  finds  that, 
to  get  it,  he  must  pay  a  lawyer  a  price  he  cannot  afford."  To 
realize  justice  he  must  appeal  to  charity.  Attorneys,  in 

1  63d  Congress,  26.  Session,  H.  R.  5601. 

2  See  Chapter  IX,  "Administration." 

8  Thirty-eighth  Annual  Report,  1913,  p.  23. 


82         PRINCIPLES  OF  LABOR  LEGISLATION 

countless  individual  cases,  have  given  their  aid  without  price, 
but  it  cannot  be  expected  that  they  can  meet  the  need  with- 
out neglecting  their  regular  clients.  Yet  without  their  aid  the 
chance  of  the  laborer's  success  in  the  legal  battle  is  negligible. 

The  reports  of  legal  aid  societies  are  filled  with  cases  of  in- 
justice that  call  for  an  attorney.  Wages  are  withheld.  Pawn- 
brokers and  "loan  sharks"  command  usurious  rates  of  interest 
on  small  loans,  and  compel  their  victims  to  sign  papers,  such 
as  chattel  mortgages  and  wage  assignments,  of  whose  contents 
they  are  ignorant.  Wage  exemption  laws  are  nullified  by 
garnishment  proceedings  brought  against  the  employer  to  at- 
tach wages  not  yet  paid.  The  laborer  must  then  have  an 
attorney  to  secure  the  release  of  his  wages,  and  he  may  lose 
his  position,  for  employers  often  make  it  a  rule  to  discharge 
employees  whose  wages  are  garnisheed.  Thus,  even  the  threat 
of  garnishment  may  serve,  not  only  to  nullify  his  exemptions, 
but  to  force  him  to  pay  unjust  claims  out  of  wages  not  exempt. 
Foreigners  are  a  class  especially  exposed  to  fraud.  The 
abuses  of  peonage,  vagrancy  laws,  and  the  padrone  system 
have  already  been  mentioned.1 

Against  these  invasions  of  their  legal  rights  wage-earners 
are  for  the  most  part  helpless  to  defend  themselves.  The 
majority  of  their  grievances  involve  small  amounts  which  do 
not  justify  the  employment  of  a  lawyer.  Besides,  there  are 
the  initial  court  costs,  such  as  fees  for  filing,  fees  for  serving 
summonses  and  subpoenas  and  for  attaching  property,  and 
fees  to  clerks  of  court  in  contested  cases.  To  the  man  with  a 
small  claim  the  remedy  may  cost  more  than  the  result. 

(i)  Private  and  Public  Legal  Aid 

To  remedy  tnese  abuses,  private  charity  has  found  a  large 
field.  Legal  aid  societies  have  been  organized  in  some  forty 
American  cities.  Their  object  is  "to  render  legal  aid  and 
assistance  gratuitously  to  all  who  may  appear  worthy  thereof, 
and  who  from  poverty  are  unable  to  procure  it."  The  first 
was  started  by  certain  German  merchants  in  New  York  in 

1  See  "Peonage,"  p.  37;   "Padrone  System,"  p.  46. 

2  Legal  Aid  Society  of  Philadelphia,  Thirteenth  Annual  Report,  1906, 
Constitution,  Art.  I,  Sec.  2. 


INDIVIDUAL  BARGAINING  83 

1876  to  help  poor  German  immigrants,  and  was  called  the 
German  Law  Protection  Society,  but  soon  extended  its  aid 
to  others.  In  1890  Arthur  von  Briesen,  called  the  "father  of 
the  legal  aid  society  movement,"  became  president  and  the 
name  was  changed  to  the  Legal  Aid  Society  of  New  York. 
The  society  has  confined  its  work  to  wage-earners,  but  with- 
out regard  to  nationality,  race,  or  religion.  The  applicant 
must  be  one  whose  claim  is  too  small  or  who  is  too  poor  to 
hire  an  attorney,  a  poor  man  being  defined  as  one  whose  in- 
come may  be  just  sufficient  to  maintain  him,  but  not  sufficient 
for  extraordinary  demands.  It  is  the  aim  of  the  society  to 
cooperate  with  and  not  to  compete  with  other  lawyers.  Its 
attorneys  are  under  agreement  to  have  no  other  legal  business 
and  they  are  not  permitted  to  recommend  any  particular 
attorney  to  applicants  whom  the  society  may  reject.  A  case 
to  be  accepted  must  be  unquestionably  meritorious,  and  this 
is  ascertained  by  investigation  and  an  impartial  hearing  of 
both  sides.  Finally,  the  society  makes  every  effort  to  settle 
cases  out  of  court,  and,  up  to  the  moment  of  trial,  if  a  reason- 
able offer  of  settlement  is  made,  advises  its  client  to  accept. 
The  policy  is  to  discourage  litigation  in  such  a  way  as  to  pro- 
tect the  rights  of  all.  In  1918  there  were  only  1,656  appear- 
ances at  court  or  before  other  tribunals  in  the  course  of  38,287 
cases  handled  by  the  society.1 

From  New  York,  legal  aid  societies  have  spread  throughout 
the  United  States  and  Europe.  In  the  United  States  they  are 
generally  unincorporated  voluntary  associations,  conducted, 
with  one  exception,2  by  private  individuals.  In  1911  the  first 
national  conference  of  legal  aid  societies  was  held  in  Pitts- 
burgh, thirteen  of  the  forty  organizations  in  the  country  being 
represented.  The  second  was  held  in  New  York  in  1912,  with 
delegates  from  sixteen  societies.  At  this  time  the  National 
Association  of  Legal  Aid  Societies  was  established,  the  objects 
being  to  give  publicity  to  the  work,  to  bring  about  coopera- 
tion and  increased  efficiency,  and  to  encourage  the  formation 
of  new  societies.3 


1  New  York  Legal  Aid  Society,  Forty-third  Annual  Report,  1918,  pp. 

4,  49,  5«- 

2  Kansas  City,  Mo. 

3  Chicago  Legal  Aid  Society,  Bulletin  No.  2,  1912-1913,  p.  3. 


84         PRINCIPLES  OF  LABOR  LEGISLATION 

The  legal  aid  movement  has  flourished  especially  in  Ger- 
many. In  1911,  there  were  1,016  societies1  which  in  1910 
had  1,546,971  cases.  In  1913,  they  held  a  convention  at 
Nuremberg,  which  was  attended  by  delegates  from  the  United 
States,  Denmark,  Holland,  Belgium,  Austria,  and  Switzerland. 
In  London,  the  "Poor  Man's  Lawyer's  Association,"  with 
"centers"  in  settlements  and  missions,  gives  gratuitous  legal 
advice  to  persons  who  cannot  afford  a  solicitor,  but  does  not 
furnish  assistance  in  court.2  It  is  sometimes  objected  that 
legal  aid  will  encourage  litigation,  but  the  record  of  cases 
settled  out  of  court  by  legal  aid  societies  does  not  support 
this  view. 

So  far  legal  aid  is  almost  entirely  a  private  enterprise,  and, 
excellent  as  has  been  the  work,  it  is  restricted  to  a  few  of  the 
larger  cities.  Even  there  the  work  has  been  seriously  ham- 
pered by  lack  of  funds,  a  handicap  repeatedly  mentioned  in 
the  reports.  There  is,  accordingly,  an  increasing  demand  that 
legal  aid  be  made  a  function  of  government  and  thus  put 
within  the  reach  of  all.  Several  attempts  in  this  direction 
have  been  made  in  the  United  States.  Kansas  City,  Mo.,  has 
the  distinction  of  possessing  the  only  municipal  free  legal  aid 
bureau  in  the  United  States.  It  was  organized  as  a  depart- 
ment under  the  board  of  public  welfare,  in  August,  19 io.3 
Los  Angeles  County,  Calif. ,  was  the  first  to  establish  the  office 
of  public  defender,4  the  duties  in  civil  cases  being  the  prosecu- 
tion of  actions  for  the  collection  of  wages  and  other  demands 
of  persons  who  cannot  afford  counsel,  in  cases  where  the 
sum  involved  does  not  exceed  $100.  This  officer  also  de- 
fends such  persons  in  civil  litigation,  when  they  are  being 
unjustly  harassed.  Costs  are  paid  from  the  county  treasury. 
Similar  officers  were  within  the  next  few  years  appointed  in 
half  a  dozen  other  cities,  including  Portland,  Ore.,  and  Minne- 
apolis, Minn.,  while  elsewhere,  as  in  New  York  City,  com- 
mittees of  "voluntary  defenders"  sprang  up.  Though  work 
of  this  nature  is  efficacious  in  obtaining  justice  and  reducing 

JW.  E.  Walz,  "Legal  Aid  Societies,  Their  Nature,  History,  Scope, 
Methods,  and  Results,"  The  Green  Bag,  Vol.  XXVI,  1914,  p.  101. 

2  Arthur  Blott,  "Legal  Dispensaries  in  London,"  Legal  Aid  Review, 
Vol.  IV,  1906,  No.  3. 

3  See  Board  of  Public  Welfare,  Kansas  City,  Mo.,  Reports. 

4  Los  Angeles  County  Charter,  Sec.  23.     Became  effective  July  i,  1913. 


INDIVIDUAL  BARGAINING  85 

its  expense  for  the  poor  man,  the  question  of  the  law's  delay 
has  not  been  solved.  The  public  defender  does  not  have 
power  to  hear  and  determine  questions  involving  the  payment 
of  wages.  His  findings  might  be  made  final  on  all  questions 
of  fact,  and,  when  the  findings  are  filed  in  court,  judgment 
might  be  entered  accordingly. x  The  public  defender  would  thus 
have  the  functions  of  an  industrial  court  as  later  described. 

A  provision  for  the  collection  of  wages  in  California  is  the 
payment  of  wages  act  of  1911.  It  provides  for  immediate 
payment  of  wages  due  to  a  discharged  employee  and  for  pay- 
ment in  five  days  to  an  employee  not  having  a  definite  con- 
tract who  quits  or  resigns.2  All  other  wages  fall  due  at  least 
once  a  month,  and  must  not  be  withheld  more  than  fifteen 
days  after  that  time.  In  November,  1914,  the  act  was  de- 
clared unconstitutional  by  a  district  court  on  the  ground  that 
in  effect  it  permitted  imprisonment  for  debt,  which  the  state 
constitution  prohibits  except  in  case  of  fraud.3  Although  the 
statute  did  not  provide  imprisonment  as  a  penalty  and  was 
silent  as  to  the  process  by  which  the  court  might  obtain  juris- 
diction of  the  person  of  the  offender,  in  the  test  case  arrest 
and  detention  pending  a  hearing  were  the  means  used.  Ac- 
cordingly, in  1915,  an  amendment  to  the  payment  of  wages 
law  was  passed.4  Instead  of  the  earlier  $500  fine  for  violation 
if  an  employer  fails  to  pay  in  full  within  five  days  after  the 
same  are  due,  the  wages  of  an  employee  who  leaves  or  is  dis- 
charged are  to  continue  at  the  same  rate  until  paid,  or  until 
action  is  commenced,  but  in  no  case  after  thirty  days.  No 
employee  who  refuses  or  avoids  payment  is  entitled  to  benefit 
under  the  act  for  such  time  as  he  avoids  payment.  Wilful 
refusal  to  pay  for  labor,  with  intent  to  secure  a  discount,  or 
to  harass  or  defraud,  constitutes  a  misdemeanor.  The  bureau 
of  labor  statistics  enforces  the  act.  During  the  year  ending 
June  30,  1918,  no  fewer  than  8,058  claims  for  wages  were  filed, 
and  4,118  claims  were  collected,  amounting  to  $i 20,841. 2o.5 


1  Recommended  by  the  public  defender  in  a  letter  to  the  Milwaukee 
Bar  Association,  March,  1914. 

2  California,  Laws  1911,  C.  92. 

3  Ex  parte  Crane,  On  Habeas  Corpus,  Crim.  560,  November  23,  1914. 

4  California,  Laws  1915,  C.  142. 

6  California,  Bureau  of  Labor  Statistics,  Eighteenth  Biennial  Report, 
1917-1918,  p.  18. 


86         PRINCIPLES  OF  LABOR  LEGISLATION 

The  majority  of  cases  are  settled  within  three  days  of  filing 
the  claim.  A  marked  decrease  during  1917  and  1918  in  the 
number  of  claims  filed  and  the  amount  collected  is  interpreted 
by  the  bureau  as  an  indication  of  its  effectiveness,  employers 
avoiding  intervention  by  adjusting  differences  before  they  are 
taken  before  the  authorities. 

In  1910,  following  the  recommendation  of  a  state  immigra- 
tion commission  appointed  to  investigate  the  condition  of 
aliens  in  the  state,  the  legislature  of  New  York  created  a 
bureau  of  industries  and  immigration  subordinate  to  the  de- 
partment of  labor,  whose  object  was  to  give  newly  arrived  im- 
migrants a  fair  start.  This  was  to  be  done  by  securing  to 
aliens  a  hearing  for  complaints  in  their  own  language,  the 
bureau  to  act  as  mediator  in  securing  the  enforcement  of 
existing  laws  to  prevent  exploitation.  The  chief  investigator 
brings  the  parties  together  at  a  hearing  and  tries  to  adjust 
the  differences.  If  he  fails,  a  civil  case  is  turned  over  to  the 
Legal  Aid  Society. 

This  system  of  state  legal  aid  for  immigrants  was  extended 
to  all  wage-earners  by  a  section  of  the  New  York  industrial 
commission  law  of  March,  1915:  "The  commission  shall  ren- 
der all  aid  and  assistance  necessary  for  the  enforcement  of 
any  claim  by  an  employee  against  his  employer,  which  the 
commission  finds  reasonable  and  just  and  for  the  protection 
of  employees  from  frauds,  extortions,  exploitation,  or  other 
improper  practices  on  the  part  of  any  person,  public  or  private ; 
and  shall  investigate  such  cases  for  the  purpose  of  presenting 
the  facts  to  the  proper  authorities  and  of  inducing  action 
thereon  by  the  various  agencies  of  the  state  possessing  the 
requisite  jurisdiction."  1  Under  this  act,  the  state  industrial 
commission  is  made  an  agency  for  providing  the  services  of  a 
lawyer  to  wage-earners  unable  to  pay  for  them.  It  lacks,  how- 
ever, a  provision  making  the  findings  conclusive  in  court 
proceedings. 

(2)  Industrial  Courts 

In  Europe,  a  different  type  of  legal  aid  has  been  evolved, 
taking  the  place,  not  of  the  lawyer,  but  of  the  judge.  This  is 


1  New  York,  Laws  1915,  C.  674,  Sec.  520. 


INDIVIDUAL  BARGAINING  87 

the  industrial  court,  or  conseil  de  prucTkommes.  Industrial 
courts  are  special  courts  for  the  settlement  of  disputes  arising 
out  of  labor  contracts  between  employers  and  employees,  and 
their  purpose  is  "to  settle  by  conciliation  whenever  possible 
and  by  legal  judgment  when  conciliation  fails,  but  in  any 
event  cheaply,  quickly,  and  by  means  of  a  court  composed 
in  part  or  in  whole  of  elected  representatives  of  the  two 
classes,  all  individual  legal  cases  which  arise  from  the  re- 
lations of  employer  and  employed."  l  The  first  industrial 
court  was  founded  at  Lyons,  France,  in  1806,  for  the  silk 
industry.  The  law  creating  the  Lyons  court  provided  that 
similar  courts  might  be  established  in  all  the  factory  cities 
of  France,  and  accordingly  their  number  has  increased  steadily. 
When  the  left  bank  of  the  Rhine  in  1815,  and  Alsace-Lorraine 
in  1871,  became  German  territory,  the  industrial  courts  were 
retained,  and  in  1890  a  general  law  provided  for  their  estab- 
lishment throughout  the  empire.  Industrial  courts  similar  to 
the  French  were  introduced  into  Belgium  in  1859,  while 
Austria  followed  in  1869,  Italy  in  1893,  and  Spain  in  1908. 
In  Switzerland,  Geneva  was  the  first  canton  to  take  up  the 
idea,  creating  an  industrial  court  on  the  French  model  in 
1882.  In  1910,  only  seven  of  the  Swiss  cantons  lacked  legis- 
lation of  this  character. 

There  are.  in  general,  three  types  of  industrial  courts: 
(i)  The  French,  in  which  only  employers  and  workers  are  rep- 
resented, and  the  number  of  members  is  even;  (2)  the  Ger- 
man, in  which  the  president  is  neither  an  employer  nor  a 
worker,  and  the  number  of  members  is  odd;  (3)  the  Swiss, 
which  is  an  adaptation  of  the  ordinary  court,  with  the 
addition  of  special  "assessors,"  or  advisers,  to  the  judge.2 
In  all  three  types  the  employers  and  workmen  are  equally 
represented. 

With  respect  to  jurisdiction,  a  labor  contract  of  some  kind 
is  essential,  but  the  idea  is  interpreted  to  cover  any  relation- 
ship between  wage-givers  and  wage-receivers.  The  great  ma- 

1  United  States  Bureau  of  Labor,  Bulletin  No.  98,  January,    1912; 
"Industrial  Courts  in  France,  Germany,  and  Switzerland,"  Helen  L. 
Sumner,  p.  273. 

2  Two  cantons  have  courts  based  on  the  French  model  (Geneva  and 
Vaud),  and  four  have  the  German  type  (Lucerne,  Berne,  St.  Gall,  Neu- 
chatel). 


83         PRINCIPLES  OF  LABOR  LEGISLATION 

jority  of  cases  are  for  wages  due,1  but  discharge  without  notice 
is  also  a  frequent  cause  of  complaint.  By  far  the  greater 
number  of  complaints  are  made  by  workers.  In  1908,  in 
Germany  as  a  whole,  5,672  cases  were  brought  by  employers 
and  106,269  by  workers.  Most  of  the  complaints  are  for 
small  sums. 

Conciliation  being  the  chief  object  of  industrial  courts, 
the  procedure  is  a  radical  departure  from  that  of  the  ordi- 
nary court.  Personal  appearance  of  the  parties  is  required, 
except  for  a  good  excuse,  as  illness  or  absence  from  the  city. 
In  Germany,  parties  may  be  represented  only  by  persons  in 
the  industry,  but  in  France  lawyers  are  allowed  to  be  present, 
either  to  represent  or  assist  the  parties.2  Lawyers  are  per- 
mitted in  Spain  also,  but  not  in  Basel,  Zurich,  or  Geneva. 
The  proceedings  are  much  less  formal  than  in  an  ordinary 
court,  and  the  president  takes  an  active  part.  Preliminary 
hearing  for  the  purpose  of  conciliation  before  a  section  of  the 
court  is  provided  for  in  France  and  Germany.  More  than 
half  the  cases  are  settled  by  conciliation,  and,  as  a  large  num- 
ber are  not  contested,  or  are  settled  by  default,  only  a  small 
percentage  call  for  formal  judgment.3 

The  salient  advantages  of  the  industrial  courts  are  rapidity 
and  cheapness.  Cases  are  set  for  as  early  hearing  as  possible, 
after  complaint,  and  only  necessary  delays  are  permitted. 
In  France,  cases  must  be  settled  in  four  months,  and  in  Ger- 
many in  1908  only  1.5  per  cent,  of  cases  brought  to  final  judg- 
ment lasted  over  three  months.  Expenses  exceeding  the  fees 
collected  are  met  by  the  municipalities  over  which  the  court 
has  jurisdiction,  or,  in  the  case  of  courts  with  wider  jurisdic- 
tion, by  the  state.  In  such  cases  there  are  no  fees;  in  others 
the  fees  are  low.  Members  of  the  courts  are  compensated  by 
fees  or  salaries,  the  method  varying  within  the  country.  In 
Germany  the  president  receives  a  salary,  and  the  representa- 
tives of  employers  and  employees  receive  fees  for  time  in  court. 


1  In  Berlin  in  1908  more  than  one-half  the  complaints  were  for  wages 
and  a  third  about  illegal  discharge. 

2  In  practice  lawyers  appear  before  the  board  of  judgment  in  Paris 
in  only  10  per  cent,  of  cases,  and  before  the  board  of  conciliation  in  only 
5  per  cent. 

3  In  1908  only  17  per  cent,  of  cases  in  Paris  and  9  per  cent,  in  Berlin 
required  formal  judgment. 


INDIVIDUAL    BARGAINING  89 

Wherever  established,  industrial  courts  are  held  indispen- 
sable, the  fact  that  no  dispute  is  too  insignificant  for  them  being 
regarded  as  a  special  advantage.  They  are,  however,  much 
more  successful  with  small-scale  production  than  with  the 
factory  system,  the  reasons  being  that  in  the  latter  case 
standardization  of  conditions  obviates  many  disputes,  and 
also  that  employees  fear  blacklisting  if  they  bring  suit. 

No  such  institution  exists  in  English-speaking  countries.  In 
Great  Britain  the  arbitration  act  of  1824  was  designed  to 
cover  individual  disputes,  but  the  procedure  was  too  intri- 
cate and  costly  ever  to  be  applied.  The  "  councils  of  con- 
ciliation" act  of  1867  permitted  industrial  courts  like  the 
French,  but  no  true  judicial  tribunal  was  ever  created  under 
it.1  In  the  United  States,  a  Pennsylvania  law,  enacted  in 
1883,  attempted  to  establish  a  sort  of  industrial  court,  but 
none  was  ever  created  and  ten  years  later  the  law  was  re- 
pealed. The  constitutions  of  New  York  and  a  few  other 
states  contain  provisions  for  courts  of  voluntary  arbitration, 
but  no  courts  were  ever  established. 

A  few  attempts  have,  however,  been  made,  along  quite 
different  lines.  One  of  these  is  the  Conciliation  Court  of 
Cleveland,  Ohio.  It  grew  out  of  a  provision  in  the  municipal 
court  act,  designating  a  clerk  to  assist  persons  unable  to  hire 
a  lawyer  in  preparing  and  filing  papers,  and,  if  possible,  to 
bring  about  a  settlement.  An  experienced  man  was  selected 
by  the  chief  justice,  and  he  often  acted  successfully  as  a 
mediator.  In  1912,  1,200  cases  were  thus  settled  ovit  of 
court.  All  services  were  free.  Since  March,  1913,  a  concili- 
ation branch  of  the  court  has  been  in  operation.  The  fee  is 
usually  25  cents,  never  more  than  45  cents,  and  all  writs  are 
served  by  registered  mail.  Lawyers  are  not  allowed  to  repre- 
sent the  parties,  and  no  set  procedure  is  required.  Each 
party  is  allowed  to  state  his  case  in  his  own  way.  When 
both  sides  have  been  heard,  the  judge  must  seek  to  effect  an 
amicable  adjustment  of  the  differences  between  the  parties.2 
Ordinarily,  he  obtains  their  consent  that  he  shall  adjust  the 

1  See  also  "Mediation  by  Government,"  p.  125.  The  above  descrip- 
tion applies  to  industrial  courts  in  their  relation  to  the  individual  bargain. 
In  some  cases  they  also  deal  with  the  collective  bargain. 

2R.  C.  Moley,  "Justice  through  Common  Sense,"  The  Survey,  Oct. 
31,  1914,  p.  loi. 


9o         PRINCIPLES  OF  LABOR  LEGISLATION 

issue  himself.  The  Cleveland  court  differs  from  the  European 
industrial  courts  in  that  neither  employers  nor  workmen  are 
represented  on  the  bench,  the  judge  is  not  elected  by  the  two 
classes,  and  the  court  does  not  confine  itself  to  disputes  arising 
out  of  the  labor  contract.  It  resembles  them  in  that  it  is  an 
authoritative  tribunal,  instead  of  being  merely  a  private 
society,  like  the  legal  aid  agencies  of  the  United  States. 

To  what  extent  it  would  be  possible  to  apply  the  European 
industrial  court  system  in  the  United  States  is  as  yet  an  open 
question.  People  have  not  awakened  to  the  need,  and  they 
are  not  prepared  for  such  a  system  by  habits  of  organization 
and  joint  action  of  interests.  It  is  improbable  that  industrial 
courts  would  be  created  generally  by  local  initiative,  as  in 
France,  and  even  if  the  system  were  made  mandatory  by  the 
state  government,  as  in  Germany,  it  would  require  a  state 
agency  to  guide  local  governments  in  starting  them.  It  is 
possible  that  the  California  wage  payment  law  and  the  New 
York  industrial  commission  law,  above  referred  to,  may  lead 
to  state  and  local  advisory  boards  of  employers  and  employees 
to  assist  the  state  authorities  in  executing  the  laws,  and 
that,  eventually,  through  the  enlightenment  of  public  opinion 
and  through  practice  in  cooperation  between  employers  and 
employees,1  the  industrial  court  may  be  successfully  modified 
and  adapted  to  American  conditions. 


See  Chapter  IX,  "Administration." 


CHAPTER  III 
COLLECTIVE  BARGAINING 

Collective  bargaining  dates  back  as  far  as  individual  bar- 
gaining. Its  first  examples  are  town  charters  and  merchant 
gilds.  The  townspeople  through  a  collective  contract  secured 
certain  rights  from  the  king  in  return  for  a  money  payment. 
Among  these  rights  none  was  more  valuable  than  that  of  the 
doctrine  "City  air  makes  free."  If  a  serf  had  been  in  a  free 
city  for  a  year,  he  became  a  free  man.  Freedom  was  estab- 
lished through  collective  bargaining.  Without  freedom  there 
can  be  no  individual  contracts.  Historically,  individual  and 
collective  bargaining  have  been  interdependent;  the  one  has 
been  necessary  to  maintain  the  other. 

i.  THE  LAW  OF  CONSPIRACY 

Yet  collective  bargaining  for  a  long  time  was  viewed  with 
suspicion.  All  associations  were  treated  as  conspiracies.  They 
were  much  more  powerful  than  individuals,  and  hence  were 
considered  dangerous,  Moreover,  collective  bargaining  im- 
plies a  restriction  of  the  freedom  to  make  individual  bargains. 
To  bargain  collectively  there  must  be  a  contract  or  an  agree- 
ment between  the  members  of  the  association  that  each  shall 
give  up  his  right  to  make  an  individual  contract,  and  shall 
either  make  his  contracts  only  as  the  majority  decides  or  shall 
permit  the  agents  elected  by  the  majority  to  make  his  con- 
tracts for  him.  In  order  to  enforce  such  bargains  the  asso- 
ciation must  have  full  disciplinary  powers  and  must  be  al- 
lowed to  determine  who  shall  be  admitted  to  membership. 
Noivmembers  do  not  share  in  the  benefits  of  the  collective 
bargain;  in  fact,  they  are  often  injured  thereby.  Collective 
bargaining  seriously  restricts  the  freedom  of  both  members 
and  non-members  to  make  individual  bargains. 


92         PRINCIPLES  OF  LABOR  LEGISLATION 

(j)  Origins  of  Collective  Bargaining 

Collective  action  was  permitted  in  early  law  only  under 
grant  of  a  special  charter  from  the  king.  Thus,  the  king 
granted  charters  to  free  citizens,  and  to  merchant  and  craft 
gilds.  Armed  with  a  charter,  the  association  might  not  be 
prosecuted  as  a  conspiracy,  and  was  conceded  the  great  privi- 
leges of  acting  as  a  unit  and  continuous  existence  through 
the  right  of  succession. 

Of  these  early  associations  the  craft  gilds  were  the  nearest 
approach  to  the  trade  unions  of  to-day;  yet  their  functions 
were  very  different.  They  were  composed  of  three  classes: 
the  masters,  the  journeymen,  and  the  apprentices.  The 
masters  and  the  journeymen  worked  side  by  side,  with  the 
same  tools.  It  was  easy  for  an  apprentice  to  become  first  a 
journeyman,  then  a  master.  Hence  the  relations  of  the  mas- 
ters to  the  journeymen  and  apprentices  received  but  little 
attention  in  the  charters  which  created  gilds.  The  wage 
bargain  which  the  master  made  with  the  journeyman  and  the 
apprentice  was  as  yet  not  a  matter  of  public  concern.  The 
public  was  interested  primarily  in  the  other  bargaining  func- 
tion of  the  masters;  their  merchant  function,  the  making  of 
the  price  bargain  with  consumers.  The  consumers  dominated 
the  government;  and  it  was  their  concern  to  prevent  extor- 
tionate prices  and  the  substitution  of  "bad  ware."  1 

With  the  gradual  expansion  of  markets,  the  merchants 
gained  recognition  in  society.  Charters  were  granted  to  the 
merchant  adventurers  who  risked  their  capital  in  foreign 
enterprises,  and  patents  of  monopoly  were  granted  to  mer- 
chants in  the  domestic  trade.  Later  came  the  special  charters 
to  banks,  canal,  turnpike,  and  railway  companies  and  other 
corporations.  Thus,  the  right  of  association  was  granted  to 
capital.  With  freedom  from  the  taint  of  conspiracy,  the  •cor- 
poration charter  conferred  upon  the  incorporators  the  privilege 
of  "limited  liability."  In  a  partnership  the  members  are  re- 
sponsible to  the  full  extent  of  their  resources  for  the  contracts 
and  torts  of  the  partnership.  But  the  members  of  corpora- 
tions have  only  "limited  liability,"  usually  only  to  the  extent 

1  See  Commons,  Labor  and  Administration,  1913,  "American  Shoe- 
makers," p.  219  ff. 


COLLECTIVE  BARGAINING  93 

of  their  subscription.  At  first,  incorporation  could  be  secured 
only  through  special  act  of  the  legislature ;  and  corruption  was 
often  employed  to  secure  such  charters.  Finally,  in  the  dec- 
ade of  the  'fifties,  general  corporation  laws  were  enacted.  It 
is  now  the  privilege  of  all  persons  to  combine  their  capital 
and  form  corporations,  with  but  few  restrictions.  So  com- 
plete is  the  right  of  association  of  capitalists  that  the  law  has 
introduced  the  fiction  that  corporations  are  persons,  entitled 
to  many  of  the  advantages  of  natural  persons;  and  the  rule 
of  "limited  liability"  lessens  the  responsibility  of  the  mem- 
bers for  the  acts  of  the  corporation. 

The  modern  corporation  has  taken  over  both  of  the  bar- 
gaining functions  of  the  masters  of  old :  the  price  bargain  and 
the  wage  bargain.  In  the  first  the  corporation  performs  the 
merchant  function,  and  its  object  is  to  get  as  high  prices  as 
possible  from  the  consumer.  In  the  second  it  performs  the 
employer  function,  and  its  object  is  to  give  as  low  wages  as 
possible  to  the  laborers. 

Collective  action  by  capital  has  not  stopped  with  the  cor- 
poration. The  corporations  have  themselves  become  mem- 
bers of  associations.  In  these  associations  it  has  generally 
been  found  advantageous  to  separate  the  two  bargaining  func- 
tions. Manufacturers'  associations,  "pools,"  and  "trusts"  are 
formed  to  deal  with  the  price  of  products  to  consumers. 
Employers'  associations  deal  with  the  wages  paid  to  labor. 
Practically  the  same  individuals  may  compose  these  associa- 
tions; but  their  functions  are  totally  different.1 

Labor  did  not  win  the  right  of  collective  bargaining  as 
early  as  capital.  When,  in  the  eighteenth  century,  in  England, 
the  laborers  combined  to  enforce  their  demands  for  higher 
wages  they  were  prosecuted  for  "conspiracy."  In  the  jour- 
neyman tailors'  case,2  for  example,  all  combinations  to  raise 
wages  were  held  to  be  conspiracies.  This  common  law  doc- 
trine was  inherited  by  our  fathers  from  England.  In  the 
mother  country  the  journeyman  tailors'  case  was  followed  by 
the  enactment  of  statutes  to  penalize  combinations  to  raise 
wages.  In  1824  and  1825  these  statutes  were  repealed,  and 
a  considerable  degree  of  freedom  to  combine  was  conceded 

1  Commons.  Labor  and  Administration,  especially  p.  262, 

2  8  Mod,  ii  (1721), 


94         PRINCIPLES  OF  LABOR  LEGISLATION 

to  labor.  In  1871  trade  unions  were  declared  not  to  be  il- 
legal combinations  in  restraint  of  trade.  In  1875  labor  was 
entirely  freed  from  the  conspiracy  law  in  its  criminal  aspects. 
Finally,  in  1906  the  law  of  civil  conspiracy  also  was  swept 
away,  and  the  trade  unions  were  conceded  complete  exemp- 
tion from  responsibility  for  damages  growing  out  of  tortious 
acts  alleged  to  have  been  committed  in  their  behalf. 

In  the  United  States,  also,  prosecutions  for  "conspiracy" 
often  followed  the  early  strikes  for  higher  wages.  In  the 
indictment  or  in  the  charge  to  the  jury  in  some  of  these  cases 
there  was  presented  the  doctrine  of  the  common  law  that  all 
combinations  to  raise  wages  are  illegal.1  But  this  was  never 
unchallenged  law  in  the  United  States;  and  in  only  one  case 
did  a  court  of  final  jurisdiction  hold  this  view.2  Yet  it  was 
considered  that  there  was  something  unlawful  about  com- 
binations of  laborers.  They  were  denounced  as  being  in- 
jurious to  the  public,  because  they  were  injurious  to  employers 
and  made  it  difficult  for  them  to  compete  in  distant  markets. 
Naturally  the  journeymen  looked  upon  all  of  these  cases  as 
prosecutions  brought  by  the  masters  to  resist  increases  of 
wages.  This  was  undoubtedly  the  real  motive  of  the  prosecu- 
tion; but  in  most  of  these  cases  the  restrictive  rules  and  prac- 
tices of  the  unions  were  emphasized,  not  the  effort  to  raise 
wages. 

In  the  earliest  cases  the  juries  always  convicted;  but  there 
was  a  growing  public  sentiment  against  these  prosecutions. 
After  the  decade  of  the  'thirties  it  was  generally  recognized 
that  a  combination  to  raise  wages  is  not  of  itself  a  conspiracy. 
In  1842,  in  Commonwealth  v.  Hunt,3  the  Massachusetts 
Supreme  Court  even  held  that  it  was  lawful  for  laborers  to 
go  on  strike  to  gain  a  closed  shop.  This  decision  was  very 
much  more  favorable  to  the  workingmen  than  are  those  of 
the  Massachusetts  courts  of  recent  years.  After  Common- 
wealth v.  Hunt  there  were  still  prosecutions  of  workingmen 
for  "conspiracy,"  but  in  the  cases  of  the  'fifties  and  'sixties 
acts  of  violence  were  usually  involved.  There  was  still  com- 


1  For  these  early  cases  see  Documentary  History  of  American  In" 
Society,  Vols.  Ill  and  IV. 

2  People  v.  Fisher,  14  Wendell  9  (1835). 

3  Commonwealth  v.  Hunt,  4  Metcalf  in  (1842). 


COLLECTIVE  BARGAINING  95 

plaint  about  the  "conspiracy  laws,"  but  they  had  lost  their 
meaning. 

Thus,  in  a  certain  sense,  the  rights  which  the  workingmen 
gained  in  England  through  legislation  in  the  'seventies  were 
acquired  by  them  in  the  United  States  without  legislation  at  a 
much  earlier  date.  But  there  was  the  vital  difference  that, 
while  in  England  the  entire  conspiracy  law  in  its  application 
to  labor  was  swept  away,  it  was  only  modified  in  this  country 
by  common  consent  and  favorable  construction.  In  England 
definite  statutes  replaced  the  vague  conspiracy  law;  in  the 
United  States  the  conspiracy  law  remained,  without  ever 
being  really  clarified.  The  few  statutes  which  were  enacted 
in  reference  to  labor  combinations  did  little  more  than  to  re- 
state the  common  law. 

In  the  'eighties  a  new  spirit  was  manifested  in  the  court 
decisions  in  this  country  involving  labor  combinations.  These 
decisions  made  clear  that  labor's  right  to  combine  was  still 
seriously  restricted.  Part  of  the  explanation  of  the  changed 
attitude  of  the  courts  is  the  aggressiveness  of  labor  at  that 
time.  The  violence  and  riots  which  accompanied  the  strikes 
of  that  period  made  the  unions  seem  dangerous  combinations. 
Another  factor  was  the  gradual  identification  of  "business" 
with  "property."  "Good  will"  and  "trade  names"  have 
been  recognized  as  property  only  within  the  last  century. 
Not  until  the  last  few  decades  have  the  courts  gone  further 
and  recognized  as  property  the  right  of  a  free  access  to  the 
commodity  market  and  to  the  labor  market.  Not  merely  are 
contracts  already  made  treated  as  property,  but  also  the  right 
to  be  unhindered  by  others  in  making  contracts. 

It  is  this  right  "to  do  business"  which  is  of  greatest  im- 
portance in  labor  disputes.  Strikers  may  attack  the  physical 
property  of  employers;  but  the  police,  the  military,  and  the 
criminal  laws  are  usually  adequate  to  deal  with  this  menace. 
But  without  any  destruction  of  physical  property  the  em- 
ployer's business  may  be  ruined.  Picketing  may  prevent  his 
getting  new  employees,  and  boycotting  may  keep  him  from 
selling  his  products.  While  the  modern  manufacturer  can 
often  survive  the  destruction  of  his  physical  property,  ob- 
struction of  access  to  the  labor  market  or  to  the  commodity 
market  brings  with  it  certain  ruin. 


96         PRINCIPLES  OF  LABOR  LEGISLATION 

The  recognition  of  "business"  as  "property"  ushered  in 
the  era  of  injunctions  in  labor  disputes.  The  first  injunction 
was  issued  in  1884,  but  not  until  the  Debs  case  1  ten  years 
later  did  the  public  generally  know  anything  about  the  use  of 
injunctions  in  labor  disputes.  Since  that  time  this  has  been 
the  legal  remedy  most  usually  sought  by  employers  when 
menaced  by  strikes  or  boycotts.  Injunptions  protect^physical 
property,  but  are  probably  less  effective  in  this  respect  than 
prosecutions  under  the  criminal  laws.  They  are  vastly  supe- 
rior, however,  in  protecting  the  expectancies  of  an  established 
business  and  are  principally  sought  for  this  purpose.  In  fact, 
nobody  thought  of  injunctions  in  connection  with  labor  dis- 
putes until  these  expectancies  were  recognized  as  property. 

In  1908  organized  labor  was  suddenly  aroused  to  a  new 
menace,  which  appeared  more  serious  even  than  the  injunc- 
tion and  the  conspiracy  doctrine.  This  was  the  damage  suit 
under  the  Sherman  anti-trust  act,  as  developed  in  the  decision 
of  the  United  States  Supreme  Court  in  the  Danbury  hatters' 
case.2  Almost  immediately  after  the  passage  of  the  Sherman 
act  in  1890  it  was  held  to  be  applicable  to  labor  unions,  but 
not  until  more  than  $250,000  damages  were  assessed  against 
the  hatters  did  labor  show  any  great  concern  about  this  situa- 
tion. It  was  then  feared  that  the  Sherman  act  rendered  all 
strikes,  if  not  all  labor  organizations,  unlawful.  This  was 
probably  beyond  the  thought  of  the  Supreme  Court;  but  the 
decisions  of  some  of  the  district  courts  after  1908  made  it  a 
reasonable  fear.  Organized  labor  bent  every  effort  toward 
securing  relief  from  this  menace,  and  in  1914  scored  a  signal 
victory  in  the  inclusion  of  a  provision  in  the  Clayton  act  to 
the  effect  that  the  anti-trust  laws  shall  not  be  construed  to 
forbid  the  existence  of  labor  organizations,  nor  to  restrain 
their  members  from  carrying  out  the  "legitimate  objects" 
thereof.  This  provision  probably  has  not  placed  labor  out- 
side the  scope  of  the  anti-trust  law,3  but  has  eliminated  the 
danger  of  an  extension  of  the  restraint-of -trade  doctrine  to  a 
possible  outlawing  of  all  labor  organizations. 


1  In  re  Debs,  158  U.  S.  564,  15  Sup.  Ct.  900  (1895). 

2  Loewe  v.  Lawlor,  208  U.  S.  274,  28  Sup.  Ct.  301  (1908). 

3  See  Kroger  Grocery  &  Baking  Co.  v.  Retail  Clerks,  250  Fed.  890 
(1918);  United  States  v.  Norris,  255  Fed.  423  (1918). 


COLLECTIVE  BARGAINING  97 

(2)  Doctrine  of  Conspiracy 

Most  of  the  cases  of  which  labor  complains  have  been  pre- 
mised, not  upon  the  federal  anti-trust  laws,  but  upon  the  com- 
mon law  doctrine  of  conspiracy.  This  doctrine  makes  illegal 
acts  done  in  pursuance  of  an  agreement  which  are  legal  when 
done  by  one  person.  One  manner  of  explaining  this  result  is 
that  when  men  combine  their  motives  become  of  importance. 
Their  combination  is  legal  when  their  motive  is  primarily  to 
benefit  themselves,  and  illegal  when  they  aim  primarily  at  the 
injury  of  another.  One  person  may  sever  all  business  rela- 
tions with  another,  if  not  under  contract  to  continue  them, 
regardless  of  the  motives  which  may  lead  him  to  take  this  step. 
But  when  workingmen  combine  to  go  on  strike  or  to  boycott 
an  employer,  the  courts  will  inquire  whether  their  primary 
motive  is  injury  to  the  employer  or  benefit  to  themselves. 

To  tmderstand  the  full  import  of  the  conspiracy  doctrine 
it  is  necessary  to  note  two  of  its  corollaries.  One  is  the 
proposition  that  where  the  purpose  of  the  combination  is 
illegal  every  act  done  in  pursuance  thereof  is  rendered  illegal, 
though  the  act  may  be  innocent  of  itself.  Acts  normally  pro- 
tected by  the  constitutional  guarantees  of  free  speech,  free 
press,  and  public  assembly,  become  unlawful  when  done  in 
furtherance  of  an  unlawful  purpose.  As  put  by  the  Supreme 
Court  of  the  United  States: l  "No  conduct  has  such  absolute 
privilege  as  to  justify  all  possible  schemes  of  which  it  may  be 
a  part.  The  most  innocent  and  constitutionally  protected  of 
acts  or  omissions  may  be  a  step  in  a  criminal  plot,  and  if  it  is 
a  step  in  a  plot  neither  its  innocence  nor  the  constitution  is 
sufficient  to  prevent  the  punishment  of  the  plot  by  law." 
Again,  if  an  illegal  plot  has  been  formed,  all  of  the  conspirators 
are  responsible  for  the  acts  of  any  of  the  conspirators  done 
in  pursuance  of  the  common  object.  Once  it  is  established  or 
taken  for  granted  that  the  workingmen  have  conspired,  any 
and  all  of  them  are  liable  for  acts  of  violence  which  may  be 
committed  by  some  of  them. 

The  soundness  of  the  doctrine  that  the  legality  of  a  com- 
bination depends  upon  the  motives  which  actuate  it  has  been 
often  questioned  in  recent  years.  It  is  most  difficult  to  de- 

1  Aikens  v.  Wisconsin,  195  U.  S.  194,  25  Sup.  Ct.  3  (1904). 


98         PRINCIPLES  OF  LABOR  LEGISLATION 

termine  what  is  the  primary  motive  of  the  workingmen  in 
undertaking  a  strike  or  a  boycott.  They  aim  both  to  injure 
the  employer  and  to  benefit  themselves.  The  bias  of  the 
judge  necessarily  plays  a  large  role  in  the  determination  of 
which  of  these  is  the  controlling  motive.  The  doctrine  that 
it  is  the  immediate  object  and  not  the  ultimate  purpose  which 
is  controlling,  helps  but  little.  In  most  labor  disputes  many 
questions  are  at  issue.  A  demand  for  the  closed  shop  may 
be  coupled  with  the  demand  for  an  increase  in  wages.  The 
latter  is  recognized  by  all  courts  to  be  legal,  while  the  former 
is  held  illegal  by  many  courts.  The  result  has  been  confusion 
and  arbitrariness  in  the  law.  Where  one  judge  sees  only  a 
lawful  combination,  another  discovers  an  unlawful  conspiracy. 

The  fundamental  premise  in  the  conspiracy  doctrine  is 
that  the  many  have  a  power  for  harm  which  no  one  person 
can  exercise.  Hence,  while  in  the  class  of  acts  which  are 
involved  in  labor  disputes  the  motive  is  considered  unimpor- 
tant when  they  are  done  by  one  person,  it  becomes  a  deter- 
mining factor  when  they  are  done  in  pursuance  of  an  agree- 
ment among  several.  But  in  American  law  the  corporation 
has  been  made  a  person.  This  makes  the  premise  of  the  con- 
spiracy doctrine  an  absurdity.  The  power  of  the  large  cor- 
poration, though  a  single  person  in  the  law,  is  greafer  than 
that  of  the  combination  of  workingmen. 

Considerations  such  as  these  have  led  some  courts  to 
abandon  the  old  form  of  statement  of  the  conspiracy  doctrine. 
They  start  with  the  proposition  that  the  employer  has  a  right 
of  free  access  to  the  labor  market  and  to  the  commodity 
market.  Intentional  interference  with  this  right  to  do  busi- 
ness is  prima  facie  wrongful.  Only  when  the  injury  done  to 
the  employer  is  the  result  of  the  exercise  of  equal  or  superior 
rights  by  the  workingmen  is  it  justified.  These  courts  dis- 
tinguish between  malice  in  fact  and  malice  in  law.  Whether 
personal  ill-will  and  spite,  malice  in  fact,  actuates  the  work- 
ingmen, they  hold  to  be  of  no  importance.  Malice  in  law 
determines  the  legality  of  their  actions;  and  malice  in  law  is 
merely  the  intentional  infliction  of  injury  without  justification.1 

1  Doremus  v.  Hennessy,  176  111.  608  at  p.  615,  52  N.  E.  924,  54  N.  E. 
524  (1898);  Berry  v.  Donavan,  188  Mass.  353,  74  N.  E.  603  (1905);  Barr 
v.  Essex  Trades  Council,  53  N.  J.  Eq.  101,  30  Atl.  88 1  (1894). 


COLLECTIVE  BARGAINING  99 

In  actual  application,  however,  malice  in  fact  is  an  impor- 
tant factor  in  determining  whether  there  is  malice  in  law. 
If  intentional  infliction  of  injury  without  justification  is  un- 
lawful, everything  turns  upon  what  is  considered  a  sufficient 
justification.  This  involves  an  evaluation  of  the  respective 
rights  of  capital  and  labor.  The  employer  has  a  right  to  con- 
duct his  business  without  interference.  The  non-unionist 
has  a  right  to  earn  his  living.  The  union  workman  has  a 
right  to  work  or  not  to  work,  as  he  chooses.  Which  of  these 
rights  is  to  prevail  when  the  union  workmen  go  upon  strike 
to  compel  the  employer  to  discharge  the  non-unionist  ?  Com- 
petition is  recognized  to  be  a  justification  for  interference  with 
the  rights  of  others.  But  when  can  the  workingmen  be  said 
to  compete  with  their  employers?  It  is  competition  when 
the  workingmen  aim  primarily  to  benefit  themselves,  when 
there  is  no  malice  in  fact.  Thus,  the  doctrine  that  intentional 
injury  done  without  justification  is  unlawful  makes  the  motive 
the  criterion  of  the  legality  of  the  acts  of  labor  combinations. 
Though  it  differs  in  statement  from  the  older  conspiracy  doc- 
trine, its  substance  is  the  same.  As  Dean  Lewis  has  put  it: 
"Those  who  say  with  Justice  Wells  that  a  man  is  liable  for 
the  harm  he  does  if  he  does  it  maliciously,  meaning  by  malice 
without  legal  excuse,  naturally  turn  to  the  defendant's  motive 
as  at  least  one  of  the  elements  on  which  the  existence  of  a 
'legal  excuse'  depends."  1  Labor  has  profited  little  from 
the  coming  in  of  the  "legal  excuse"  doctrine.  It  has  re- 
phrased the  conspiracy  doctrine,  but  has  kept  its  spirit. 

In  .labor  cases  there  is  always  much  discussion  of  the  rights 
of  the  respective  parties.  Thus,  it  is  said  that  employers 
have  a  right  to  conduct  their  business  as  they  see  fit.  On 
the  other  hand,  the  right  of  the  workingmen  to  quit  employ- 
ment is  often  described  as  absolute.  These  abstract  state- 
ments read  well;  but  the  trouble  is  that  in  labor  disputes 
these  rights  come  into  conflict.  This  clash  of  rights  has  led  the 
courts  to  inquire  into  the  motives  which  actuate  the  working- 
men.  To  justify  holding  against  labor  unions  recourse  has 
been  had  to  the  theory  that  the  element  of  combination  radi- 

1  Columbia  Law  Review,  February,  1905,  p.  118.  See  also  Trowbridge, 
"  Legal  Limitations  upon  Interference  with  the  Contract  Rights  of  a  Com- 
petitor," in  Yale  Review,  May,  1910,  pp.  55-78. 


ioo       PRINCIPLES  OF  LABOR  LEGISLATION 

cally  changes  the  situation.  Where  the  court  holds  to  the 
conspiracy  doctrine,  no  matter  how  it  may  be  expressed,  the 
decision  is  apt  to  be  against  the  union. 

There  are  a  large  number  of  cases,  however,  in  which  the 
courts  have  held  that  the  fact  that  acts  are  done  in  pursuance 
of  a  combination  does  not  affect  their  legality.1  Other  cases 
hold  that  a  bad  motive  cannot  render  illegal  acts  which  are 
otherwise  lawful.2  Thus,  they  sweep  away  the  foundations 
of  the  doctrine  of  conspiracy.  The  courts  of  California  have 
gone  furthest  in  this  regard.  In  California  quitting  work  and 
refusing  to  patronize  are  held  to  be  absolute  rights  of  the 
workingmen,  and  the  fact  that  these  rights  are  exercised  in 
pursuance  of  a  combination  is  treated  as  immaterial.3  The 
only  limitation  upon  collective  action  is  that  labor  shall  not 
resort  to  coercion  or  intimidation.  The  practical  conclusion 
reached  in  California  is  that  all  strikes  and  all  boycotts  are 
lawful. 

Even  if  the  motive  of  the  workingmen  is  held  to  be  im- 
material, there  is  wide  room  for  diversity  of  opinion  as  to 
the  means  which  labor  may  employ  to  gain  its  ends.  There 
is  agreement  that  coercion  and  intimidation  are  unlawful. 
But  what  conduct  is  coercive  and  intimidating?  In  Cali- 
fornia, pressure  brought  to  bear  upon  third  parties  through 
sympathetic  strikes  and  secondary  boycotts  is  treated  as 
not  coercive.  On  the  other  hand,  picketing  is  held  to  be 
necessarily  intimidating.4  In  other  jurisdictions  pressure  upon 
third  parties,  other  than  that  resulting  from  persuasion,  is 
treated  as  coercion,  while  picketing  is  often  considered  legal. 
There  is  a  pronounced  tendency  in  recent  cases  throughout 
the  country  to  say  little  about  the  illegal  motives  of  the  work- 
ingmen and  to  find  the  illegality  of  their  conduct  in  the  un- 
lawful means  they  employ.  This  may  seem  to  be  a  great 
advance  for  organized  labor ;  but  the  gain  is  deceptive.  Prac- 
tically it  makes  no  difference  whether  a  sympathetic  strike 


1  Cooke,  The  Law  of  Combinations,  Monopolies,  and  Labor  Unions,  1908, 
p.  33,  and  the  cases  there  cited. 

2  Ibid.,  p.  17,  and  cases  cited. 

3  Parkinson  Co.  v.  Building  Trades'  Council,  154  Cal.  581,  98  Pac.  1027 
(1908);  Pierce  v.  Stablemen's  Union,  156  Cal.  70,  103  Pac.  324  (1909). 

4  Pierce  v.  Stablemen's  Union,  156  Cal.  70,  103  Pac.  324  (1909).     Ex 
parle  Williams,  158  Cal.  550,  in  Pac.  1035  (1910). 


COLLECTIVE  BARGAINING  101 

is  condemned  because  the  motive  of  the  workingmen  is  held 
to  be  to  injure  the  employer,  or  because  it  amounts  to  an 
effort  to  coerce  a  third  party.  " Coercion"  and  " intimida- 
tion" are  so  vaguely  defined,  that  almost  any  conduct  can 
be  considered  coercive  or  intimidating. 

Thus,  there  are  three  theories  which  underlie  most  of  the 
cases  involving  collective  action  by  labor.  The  most  funda- 
mental of  these  is  the 'theory  that  when  men  combine  the  / 
legality  of  their  acts  depends  upon  their  motives.  Another 
holds  that  intentional  interference  with  the  rights  of  others  NL 
is  wrongful,  unless  it  results  from  the  exercise  of  equal  or 
superior  rights.  The  third  theory  places  emphasis,  upon  the 
element  of  coercion  and  intimidation  involved  in  the  acts  of 
combination.  In  their  manner  of  statement  these  theories 
are  wide  apart;  but  their  practical  conclusions  have  been 
much  the  same.  No  matter  which  theory  a  court  may  enter- 
tain, there  is  great  latitude  in  its  application.  Under  each 
theory  much  depends  upon  whether  the  demands  of  the  work- 
ingmen are  justified  or  unjustified.  Hence,  the  bias  of  the 
judge  is  likely  to  be  determining. 

(3)  Court  Decisions 

a.  Strikes.  When  we  pass  from  the  abstract  theories  of  the 
courts  to  their  practical  conclusions,  similar  diversity  of  state- 
ment is  encountered.  In  part  this  is  due  to  real  differences 
in  the  conclusions  reached.  In  different  states  the  rights  of 
organized  labor  differ  widely.  Even  in  the  same  state  it  is 
often  quite  impossible  to  reconcile  the  several  decisions. 
Dissenting  opinions  are  very  common.  The  confusion  which 
exists,  however,  is  due  not  only  to  real  differences  as  to  the 
law,  but  also  to  the  use  of  common  terms  in  divergent  mean- 
ings. Neither  the  term  "strike"  nor  the  term  "boycott" 
has  a  standard  meaning  in  law.  Some  courts  speak  of  the 
"strike"  as  involving  only  the  collective  quitting  of  work. 
Others  include  within  that  term  not  only  the  collective  quit- 
ting, but  also  the  agreement  which  precedes  it.  Even  this 
conception  is  too  narrow.  To  it  must  be  added  the  idea  that 
the  quitting  is  but  temporary,  that  the  strikers  do  not  consider 
that  they  have  permanently  quit,  but  that  they  expect  to 


102       PRINCIPLES  OF  LABOR  LEGISLATION 

be  employed  again  on  different  terms,  through  coercion  of 
their  employers. 

As  to  the  term  " boycott"  it  has  been  truly  said  that 
"  scarcely  any  two  courts  treating  of  the  subject  formulate  the 
same  definition."  l  The  essential  idea  in  many  of  these 
definitions  is  that  third  parties  are  illegally  coerced  to  sever 
their  business  relations  with  the  employer  against  whom 'the 
union  is  waging  its  fight,  Thus,  it  was  said  in  one  case  that 
"the  word  in  itself  implies  a  threat."  2  Similarly  Judge  Taft 
defined  a  "boycott"  as  a  "combination  of  many  to  cause  a 
loss  to  one  person  by  coercing  others,  against  their  will,  to 
withdraw  from  him  their  beneficial  business  intercourse, 
through  threats  that,  unless  those  others  do  so,  tfce  many 
will  cause  similar  loss  to  them."  3  Such  definitions  make  no 
allowance  for  the  so-called  primary  boycott,  in  which  no 
effort  to  coerce  third  parties  is  involved.  In  recent  years 
boycotts  against  restaurants  have  been  more  frequent  than 
any  other  boycotts,  but  they  would  not  fall  within  the  defini- 
tion of  Judge  Taft.  On  the  other  hand,  sympathetic  strikes 
and  strikes  against  the  use  of  non-union  material  are  by  this 
definition  treated  as  "boycotts."  Trade  unionists  at  times 
use  the  term  in  this  broad  sense,  but  more  commonly  only  in 
reference  to  the  collective  refusal  to  buy  the  products  of  an 
"unfair"  manufacturer  or  merchant.  This  is;  the  sense  in 
which  this  term  will  be  used  in  this  chapter. 

Upon  the  question  of  the  legality  of  trade  unions  per  s_e_ 
there  is  general  agreement  among  the  courts.  Statutes  have 
been  passed  in  a  number  of  states  which  make  it  a  felony  to 
organize  or  belong  to  any  organization  which  advocates  crim- 
inal syndicalism.4  The  unions  affiliated  with  the  American 
Federation  of  Labor,  however,  have  always  been  regarded  as 
lawful  organizations,  except  in  two  decisions,  neither  of  which 
was  rendered  by  a  court  of  final  jurisdiction.6  The  theory, 


1  Lindsay  &  Co.  v.  Montana  Federation  of  Labor,  37  Mont.  264,  96 
Pac.  127  (1908). 

2  Brace  v.  Evans,  5  Pa.  Co.  Ct.  163,  at  p.  171  (1888). 

3  Toledo,  A.  A.  &  N.  M,  R.  Co.  v.  Pennsylvania  Co.,  54  Fed.  730  (1893). 

4  See,  for  instance,  California,  Laws  1919,  C.  188. 

5  Kealy  v.  Faulkner,  18  (Ohio)  Superior  and  Common  Pleas  Decisions 
498  (1908);    Hitchman  Coal  and  Coke  Co.  v.  Mitchell,  202  Fed.  512 
(1912). 


COLLECTIVE  BARGAINING  103 

entertained  in  England  before  1871,  that  trade  unions  have  no 
standing  in  court  because  they  are  illegal  combinations  in  re- 
straint of  trade,  never  gained  a  foothold  in  the  United  States. 

But  while  the  legality  of  trade  unions  is  not  questioned, 
there  have  been  serious  restrictions  upon  their  efforts  to  make 
themselves  effective.  The  strike,  the  most  essential  of  labor's 
weapons,  has  often  been  condemned  as  illegal.  Much  con- 
fusion exists  as  to  the  legality  of  strikes,  due  principally  to  the 
different  meanings  in  which  this  term  is  used.  Many  courts 
hold  that  " striking,"  in  the  sense  of  collectively  quitting  work, 
is  always  legal.  What  is  really  meant  is  that  quitting  work 
cannot  be  directly  prevented.  The  thirteenth  amendment  has 
forbidden  slavery  and  involuntary  servitude.  The  specific 
enforcement  of  labor  contracts  is  slavery.  Even  when  under 
a  definite  time  contract,  workmen  may  not  be  compelled  to 
labor  when  they  wish  to  quit.  But  an  action  would  still  lie 
against  them  in  damages  for  the  breach  of  their  contract. 
In  practice  but  few  workmen  labor  under  contracts  running 
for  a  definite  time.  Hence,  to  all  practical  intents  and  pur- 
poses, quitting  work  is  always  lawful.  This  is  what  most 
courts  mean  when  they  declare  that  it  is  lawful  to  strike  for 
any  or  no  reason. 

But  in  most  strikes  something  more  than  quitting  work  is 
involved.  There  is  an  antecedent  agreement  to  quit,  there 
are  demands  upon  the  employer,  and  there  is  a  "threat"  that 
unless  he  yields  a  strike  will  be  called.  The  element  of  com- 
bination enters  into  the  strike.  Even  after  the  workmen  have 
quit  they  still  act  in  concert.  It  is  the  entire  combination, 
of  which  the  quitting  work  is  but  a  part,  which  constitutes 
the  strike. 

The  strike  in  this  sense  is  not  always  legal.  The  rule  most 
generally  applied  is  that  when  the  purpose  of  the  strikers  is 
primarily  to  injure  the  employer  or  non-union  workmen  the 
strike  is  illegal.  The  Massachusetts  Supreme  Court  has  best 
stated  this  rule: *  "To  justify  interference  with  the  rights  of 
others  the  strikers  must  in  good  faith  strike  for  a  purpose 
which  the  court  decides  to  be  a  legal  justification  for  such  in- 
terference. ...  A  strike  is  not  a  strike  for  a  legal  purpose  be- 
cause  the  strikers  struck  in  good  faith  for  a  purpose  which 

1  De  Minico  v.  Craig,  207  Mass.  593,  94  N.  E.  317  (1911). 


io4       PRINCIPLES  OF  LABOR  LEGISLATION 

they  thought  was  a  sufficient  justification  for  a  strike.  As 
we  have  said  already,  to  make  a  strike  a  legal  strike  the  pur- 
pose of  the  strike  must  be  one  which  the  court  as  a  matter  of 
law  decides  is  a  legal  purpose  of  a  strike,  and  the  strikers  must 
have  acted  in  good  faith  in  striking  for  such  a  purpose."  In 
other  cases  the  fact  that  the  strikers  aim  to  "coerce"  the 
employer  and  "threaten"  him  with  loss  unless  he  complies 
with  their  demands  is  emphasized. 

The  result  of  the  application  of  these  doctrines  has  been 
that  strikes  have  often  been  condemned  as  unlawful.  The 
Massachusetts  cases  are  the  most  extreme  in  this  respect. 
Almost  never  have  they  found  that  strikers  were  pursuing 
lawful  objects  when  they  endeavored  to  procure  the  discharge 
of  non-union  workmen  or  of  the  members  of  rival  unions.1 
They  condemn  also  strikes  to  procure  the  removal  of  objec- 
tionable foremen,  and  all  sympathetic  strikes.2  The  Massa- 
chusetts cases  even  hold  that  though  the  strike  is  for  higher 
wages,  the  members  of  the  union  may  not  be  coerced  to 
participate  therein  through  threat  of  a  fine  or  of  expulsion 
from  the  union.3  In  Connecticut  and  in  Vermont  strikes 
against  non-unionists  have  been  condemned.4  Closed  shop 
strikes  have  been  held  unlawful  also  in  New  Jersey,  as  have 
strikes  against  the  use  of  non-union  material.5  In  Penn- 
sylvania there  is  a  statute  which  reads  to  a  layman  as  though 

1  Plant  i».  Woods,  176  Mass.  492  (1900);   Berry  v.  Donavan,  188  Mass. 
353,  74  N.  E.  603  (1905);   Aberthaw  Construction  Co.  v.  Cameron,  19^ 
Mass.  208,  80  N.  E.  478  (1907);    Reynolds  v.  Davis,  198  Mass.  294,  84 
N.  E.  457  (1908);   Folsom  v.  Lewis,  208  Mass.  336,  94  N.  E.  316  (1911); 
Snow  Iron  Works  v.  Chadwick,  227  Mass.  382,  116  N.  E.  801   (1917). 
Slightly  contrary,  Pickett  v.  Walsh,  192  Mass.  572,  78  N.  E.  753  (1906); 
Cornellier  v.  Haverhill  Shoe  Mfrs.  Ass'n,  221  Mass.  554,  109  N.  E.  643 

(1915). 

2  De  Minico  v.  Craig,  207  Mass.  593,  94  N.  E.  317;    Hanson  v.  Innis, 
211  Mass.  301,  97  N.  E.  756  (1912);   Reynolds  v.  Davis,  198  Mass.  294, 
84  N.  E.  457  (1908). 

3  Willcut  &  Sons  Co.  v.  Driscoll,  200  Mass,  no,  85  N.  E.  897  (1908); 
Casson  v.  Mclntosh,  199  Mass.  443,  85  N.  E.  529  (1908). 

4  Wyeman  v.  Deady,  79  Conn.  414,  65  Atl.  129  (1906);  Conners  v.  Con- 
nolly, 86  Conn.  641,  86  Atl.  600  (1913);  State  v.  Dyer,  67  Vt.  690,  32  Atl. 
814  (1894).     But  see  also  Cohn  &  Roth  Electrical  Co.  v.  Bricklayers, 
92  Conn.  161,  101  Atl.  659  (1917). 

5  Booth  v.  Burgess,  72  N.  J.  Equity  181,  65  Atl.  226  (1906);    Brennan 
v.  United  Hatters,  73  N.  J.  729,  65  Atl.  165  (1906);  Blanchard  v.  District 
Council,  78  N.  J.  737,  71  Atl.  1131  (1909);  Ruddy  v.  Plumbers,  79  N.  J. 
467,  75  Atl.  742  (:OIOK 


COLLECTIVE  BARGAINING  105 

it  legalized  all  strikes.  Yet  the  courts  of  that  state  have 
held  unlawful  strikes  growing  out  of  jurisdictional  disputes, 
closed  shop  strikes,  and  strikes  against  non-union  material.1 
In  Illinois  the  question  of  the  legality  of  a  strike  for  the  closed 
shop  has  been  several  times  before  the  supreme  court.  In 
1905  such  a  strike  was  held  to  be  unlawful;  in  1912  the  court 
split  evenly  upon  this  question.2  New  York  has  a  statute 
legalizing  "peaceable  assembling  or  cooperation"  by  work- 
ingmen  "for  the  purpose  of  securing  an  advance  in  the  rate 
of  wages."  Elsewhere  such  strikes  are  held  lawful,  even 
without  any  such  statute.  Strikes  for  many  purposes  have 
been  condemned  by  the  New  York  courts.  The  court  of 
appeals  has  held  unlawful  strikes  to  collect  fines  from  em- 
ployers.3 Inferior  courts  have  condemned  strikes  against  non- 
union material.4  Some  New  York  cases  also  hold  sympathetic 
strikes  to  be  unlawful.5  The  question  of  the  legality  of  strikes 
for  the  closed  shop  has  often  come  up  in  New  York.  The  de- 
cisions of  the  court  of  appeals  upon  this  issue  are  very  difficult 
to  reconcile.  In  the  Curran  v.  Galen  case  in  1897  6  a  non- 
union  workman  who  lost  his  job  because  his  employer  entered 
into  a  closed  shop  agreement  was  held  to  have  an  action 
against  the  union.  In  the  Cumming  case  in  1902  7  the  ma- 
jority of  the  court  squarely  sustained  a  strike  to  establish  a 
closed  shop.  In  the  Jacobs  v.  Cohen  case  in  1905^  however, 
an  effort  was  made  to  reconcile  the  two  prior  decisions  and  to 


1  Erdman  v.  Mitchell,  207  Pa.  79,  56  Atl.  327  (1903);   House  Painters 
v.  Feeney,  13  Pa.  Dist.  335  (1904);    Bausbach  v.  Rieff,  237  Pa.  482,  85 
Atl.  762  (1912);    Patterson  v.  Trades'  Council,  II  Pa.  Dist.  500  (1902); 
Purvis  v.  Carpenters,  214  Pa.  348,  63  Atl.  585  (1906). 

2  O'Brien  v.  People,  216  111.  354,  75  N.  E.  108  (1905);  Kemp  v.  Division 
No.  241,  Amal.  Association  of  Street  and  Electric  Ry.  Employees,  255 
111.  213,  99  N.  E.  389  (1912). 

3  People  v.  Barondess,  133  N.  Y.  649,  31  N.  E.  240  (1892).     See  also 
People  v.  Weinsheimcr,  117  App.  Div.  603,  102  N.  Y.  Supp.  579  (1907). 

4  People  v.  McFarlin,  43  Misc.  591,  89  N.  Y.  Supp.  527  (1904);   Albro 
J.  Newton  Co.  v.  Frickson,  70  Misc.  291,  126  N.  Y.  Supp.  949  (1911). 

5  Beattie  v.  Callanan,  67  App.  Div.  14,  73  N.  Y.  Supp.  518;    82  App. 
Div.  7,  81  N.  Y.  Supp.  413  (1901-03);   Schlang  v.  Ladies'  Waist  Makers, 
67  Misc.  221,  124  N.  Y.  Supp.  289  (1910).     Contrary  Searle  Mfg.  Co.  v. 
Terry,  56  Misc.  265,  106  N.  Y.  Supp.  438  (1905). 

6  Curran  v.  Galen,  152  N.  Y.  33,  46  N.  E.  297  0897). 

7  National    Protective    Association    of    Steamfitters    and    Helpers    v. 
Cumming,  170  N.  Y.  315,  63  N.  E.  369  (1902). 

8  Jacobs  v.  Cohen,  183  N.  Y.  207,  76  N.  E.  5  (1905). 


106       PRINCIPLES  OF  LABOR  LEGISLATION 

consider  them  both  as  law.  The  doctrine  evolved  seems  to  be 
that  the  closed  shop  is  lawful  as  long  as  it  does  not  give  the 
union  a  monopoly  in  the  community  in  which  it  operates. 

Enough  cases  have  been  cited  to  illustrate  the  attitude  of 
the  courts  toward  strikes.  Except  wiiere  compulsory  arbi- 
tration has  been  introduced,  as  in  Kansas  in  1920,*  strikes 
solely  and  directly  involving  the  rate  of  pay  or  the  hours  of 
labor  are  in  ordinary  times  everywhere  considered  legal.  But 
strikes  to  gain  a  closed  shop,  sympathetic  strikes,  and  strikes 
against  non-union  material  have  been  condemned  in  many 
jurisdictions.  Only  in  California  is  it  settled  law  that  all 
strikes  are  legal. 

But  because  strikes  are  illegal  it  does  no\  follow,  that  there 
is  any  effective  way  of  preventing  them.  Arthur  v.  Oakes  2 
authoritatively  established  that  laborers  may  in  no  circum- 
stances be  enjoined  from  quitting  work.  In  some  injunc- 
tions, however,  "conspiring  to  quit"  has  been  enjoined.  In 
others  the  union  officers  have  been  prohibited  from  advising 
or  ordering  the  workmen  to  go  upon  strike,  or  from  paying 
strike  benefits.  A  notable  injunction  of  this  type  wTas  secured 
by  the  federal  government  during  the  bituminous  coal  mine 
dispute  of  1919.  Taking  advantage  of  the  war-time  food  and 
fuel  control  act,  which  prohibited  conspiracies  to  curtail  pro- 
duction in  either  of  these  lines,  the  Department  of  Justice 
asked  for  an  order  restraining  the  officials  of  the  miners' 
organization  from  calling  a  strike  and  from  distributing  strike 
funds.  The  miners  showed  that  while  the  act  was  under 
discussion  in  Congress  it  was  authoritatively  stated  on  the 
floor  of  the  Senate  "that  the  administration  does  not  construe 
this  bill  as  prohibiting  strikes  and  peaceful  picketing  and  will 
not  so  construe  the  bill,  and  that  the  Department  of  Justice 
does  not  so  construe  the  bill  and  will  not  so  construe  the  bill."  3 
They  contended  also  that  the  war  was  over,  and  that  the 
government  had  recognized  this  fact  in  relation  to  the  coal 
industry  by  winding  up  the  affairs  of  the  Fuel  Administration, 
by  abandoning  the  distribution  of  coal  through  the  War 
Industries  Board,  and  by  ceasing  to  collect  coal  production 

1  See  "Coercion  by  Government,"  p.  149. 

2  Arthur  v.  Oakes,  u  C.  C.  A.  209,  63  Fed.  310  (1894). 

3  Congressional  Record,  65th  Congress,  ist  Session,  p.  5904. 


COLLECTIVE  BARGAINING  107 

costs  through  the  Federal  Trade  Commission.  Nevertheless 
the  injunction  was  made  permanent,  and  the  strike  was  de- 
clared off  under  protest  by  the  mine  workers'  officials.  In 
some  recent  cases  such  injunctions  have  been  condemned  as 
an  indirect  method  of  compelling  the  workmen  to  labor.1 
Usually  injunctions  are  not  taken  out  until  after  the  workmen 
have  quit.  Almost  never  have  the  courts  acted  upon  the 
theory  that,  inasmuch  as  the  strike  is  unlawful,  all  efforts  of 
the  workingmen  to  make  it  effective  must  be  prevented. 
Whether  the  strike  is  considered  lawful  or  unlawful  by  the 
courts  makes  little  difference  either  in  the  phraseology  of  the 
injunction  or  in  its  enforcement.  In  reference  to  damage 
suits  the  situation  is  different.  Most  of  the  cases  in  which 
closed  shop  strikes  have  been  condemned  grew  out  of  actions 
for  damages  brought  by  non-union  workmen  who  had  lost 
their  jobs  because  of  such  strikes.  The  suits  were  premised 
upon  the  illegality  of  the  strikes,  not  upon  the  unlawful  con- 
duct which  may  have  accompanied  them. 

b.  Boycotts.  The  boycott  was  condemned  as  unlawful  as 
early  as  i886.2  Many  decisions  have  since  confirmed  this 
view.  As  the  Supreme  Court  of  the  United  States  has  said, 
the  courts  are  nearly  unanimous  in  condemning  boycotting  as 
wrongful.3  In  a  few  states  it  is  specifically  prohibited  by 
statute.4  The  reasoning  relied  upon  in  condemning  the  boy- 
cott has  generally  been  that  it  amounts  to  an  effort  to  "coerce" 
third  parties.  Hence  it  falls  within  the  category  of  conspira- 
cies. In  some  cases  an  effort  is  made  to  distinguish  the  pri- 
mary boycott  from  the  secondary  boycott,  the  latter  being  the 
boycott  of  a  third  party,  usually  a  merchant  who  sells  the 
product  of  the  employer  primarily  boycotted.  Many  courts 
in  fact  use  the  term  "boycott"  as  embracing  only  secondary 
boycotts.  But  this  distinction  in  practice  amounts  to  little. 

1  Thomas  v.  Cincinnati,  N.  O.  &  T.  P.  R.  Co.,  62  Fed.  803,  817  (1894); 
Wabash  R.  Co.  v.  Hannahan,  121  Fed.  563  (1903);   Barnes  v.  Berry,  157 
Fed.  883  (1908);   Delaware,  L.  &  W.  R.  Co.  v.  Switchmen,  158  Fed.  541 
(1908);    Kemp  v.  Div.  No.  241  Amalgamated  Association  of  Street  and 
Electric  Railway  Employees,  255  111.  213,  99  N.  E.  389  (1912). 

2  People  v.  Wilzig,  4  N.  Y.  Crim.  403  (1886) ;  People  v.  Kostka,  4  N.  Y. 
Crim.  429  (1886). 

3  Loewe  v.  Lawlor,  208  U.  S.  274,  28  Sup.  Ct.  301  (1908). 

4  See  Harry  W.  Laidler,  Boycotts  and  the  Labor  Struggle,  1913,  pp.  174- 


io8       PRINCIPLES  OF  LABOR  LEGISLATION 

Few  employers  of  labor  sell  directly  to  the  consumers.  Hence, 
there  can  be  but  few  primary  boycotts.  To  boycott  a  manu- 
facturer pressure  must  usually  be  brought  to  bear  upon  the 
dealers  who  handle  his  products.  This  introduces  the  third 
party  and  the  element  of  the  secondary  boycott.  It  is  sig- 
nificant that  all  of  the  statements  holding  primary  boycotts 
legal  are  "obiter  dicta,"  or  incidental  remarks  delivered  in  the 
course  of  a  decision  on  some  other  point,  and  occur  in  cases  in 
which  the  courts  found  an  illegal  secondary  boycott. 

In  California  boycotting  has  been  held  to  be  lawful.1 
Though  its  supreme  court  has  not  spoken,  this  seems  to  be 
the  view  also  in  Oklahoma.2  Some  New  York  cases  also  have 
sustained  the  boycott.3  Both  in  Missouri  and  in  Montana  it 
has  been  held  that  the  constitutional  guarantees  of  free  speech 
arid  free  press  give  laboring  men  the  right  to  refer  to  em- 
ployers as  unfair.4  Later  decisions  in  both  states,  however, 
have  made  clear  that  this  does  not  mean  that  boycotting  is 
legal,  but  only  that  the  printing  and  the  distribution  of  boy- 
cott circulars  may  not  be  directly  enjoined.5 

Though  boycotting  has  for  a  long  time  been  held  illegal 
in  most  jurisdictions,  it  is  only  in  recent  years  that  organized 
labor  has  taken  alarm  at  these  decisions.  Until  1908  boy- 
cotts were  conducted  openly  and  fearlessly.  Sometimes  in- 
junctions were  taken  out  against  boycotts,  but  they  only 
increased  their  effectiveness,  through  giving  them  wider  pub- 
licity. The  Danbury  hatters'  case  in  1908  6  first  brought 
home  to  labor  that  damages  might  be  collected  for  losses 

1  Parkinson  Co.  v.  Building  Trades'  Council,  154  Cal.  581,  98  Pac.  1027 
(1908);    Pierce  v.  Stablemen's  Union,  156  Cal.  70,  103  Pac.  324  (1909). 

2  Laidler,  Boycotts  and  the  Labor  Struggle,  p.  414. 

s  Sinsheimer  v.  Garment  Workers,  59  N.  Y.  St.  503,  28  N.  Y.  Supp.  321 
(1894);  People  v.  Radt,  15  N.  Y.  Cr.  174,  71  N.  Y.  Supp.  846  (1900); 
Cohen  v.  Garment  Workers,  35  Misc.  748,  72  N.  Y.  Supp.  341  (1901); 
Foster  v.  Retail  Clerks,  39  Misc.  48,  78  N.  Y.  Supp.  860  (1902) ;  Butterick 
Pub.  Co.  v.  Typographical  Union,  50  Misc.  i,  100  N.  Y.  Supp.  292  (1906). 
To  contrary, 'Matthews  v.  Shankland,  25  Misc.  604,  56  N.  Y.  Supp.  123 
(1898);  Sun  Ptg.  &  Pub.  Ass'n  v.  Delaney,  62  N.  Y.  Supp.  750  (1900); 
Mills  v.  U.  S.  Print.  Co.,  99  App.  Div.  605,  91  N.  Y.  Supp.  185  (1904). 

4  Jeans  Clothing  Co.  v.  Watson,  168  Mo.  133,  67  S.  W.  391   (1902); 
Lindsay  &  Co.  v.  Montana  Fed.  of  Labor,  37  Mont.  264,  96  Pac.  127 
(1908). 

5  Lohse  Patent  Door  Co.  v.  Fuelle,  215  Mo.  421,  114  S.W.  997  (1908); 
Iverson  ».  Dilno,  44  Mont.  270,  119  Pac.  719  (1911). 

6  Loewe  v.  Lawlor,  208  U.  S.  274,  28  Sup.  Ct.  301  (1908). 


COLLECTIVE  BARGAINING  109 

sustained  through  boycotts.  The  American  Federation  of  Labor 
at  once  discontinued  its  ' '  We  Don't  Patronize ' '  list.  In  general, 
fewer  boycotts  were  thereafter  undertaken  and  they  were  con- 
ducted much  less  openly.  There  are  still  numerous  local  boycotts 
and  some  conducted  upon  a  nation-wide  scale ;  but  there  can  be 
no  doubt  that  the  attitude  of  the  courts  toward  the  boycott 
seriously  restricts  labor's  use  of  this  collective  weapon. 

c.  Picketing.  Strikes  cannot  be  effective  when  the  employer  is 
able  to  secure  a  sufficient  number  of  new  employees.  Hence  the 
strikers  endeavor  to  prevent  the  employer  from  getting  them. 
They  may  do  this  either  through  persuasion  or  through  in- 
timidation. All  are  agreed  that  intimidation  is  unlawful. 

Persuasion,  on  the  other  hand,  is  generally  lawful.  An 
exception  must  be  made  when  the  employees  persuaded  to 
leave  work  are  under  definite  unexpired  contracts.  It  is  a. 
rule  of  the  common  law  that  an  action  lies  against  a  third 
person  who  persuades  another  to  break  a  contract  without 
legal  excuse.  This  rule  has  been  quite  often  invoked  in  labor 
cases  in  this  country.1  In  some  cases  the  rule  has  been 
applied  even  to  persuasion  to  induce  employees  to  quit  work 
whose  contract  was  from  day  to  day.2  The  courts  in  these 
cases  have  taken  the  position  that  these  employees  would  have 
continued  at  work  but  for  the  intermeddling  of  the  third 
parties.  A  further  extension  of  this  doctrine  was  made  by 
the  United  States  Supreme  Court  in  the  case  of  Hitchman 
Coal  &  Coke  Co.  v.  Mitchell 3  in  1917.  It  held  that  where  an 
employer  has  compelled  all  of  his  employees  to  sign  a  contract 
that  they  will  not  join  any  labor  union,  it  is  illegal  to  make  any 
effort  to  organize  them. 

In  most  cases,  however,  it  has  been  held  that  strikers  may 

1  Haskins  v.  Royster,  70  N.  C.  601  (1874);   Bixby  v.  Dunlap,  56  N.  H. 
456  (1876);    Beekman  v.  Marsters,  195  Mass.  205,  80  N.  E.  817  (1907); 
Flaccus  v.  Smith,  199  Pa.  128,  48  Atl.  894  (1901);   Employing  Printers' 
Club  v.  Doctor  Blosser  Co.,  122  Ga.  509,  50  S.  E.  353  (1905);  Hitchman 
Coal  &  Coke  Co.  v.  Mitchell,  202  Fed.  512  (1912). 

2  Walker  v.  Cronin,  107  Mass.  555  (1871);   O'Neil  v.  Behanna,  182  Pa. 
236,  37  Atl.  843  (1897);   Frank  v.  Herold,  63  N.  J.  Eq.  443,  52  Atl.  152 
(1901);    George  Jonas  Glass  Co.  v.  Glass  Bottle  Blowers,  77  N.  J.  Eq. 
219,  79  Atl.  262   (1911);    Southern  R.  Co.  v.  Machinists,   in  Fed.  49 
(1901);   Davis  Machine  Co.  v.  Robinson,  41  Misc.  329,  84  N.  Y.  Supp. 

837  (1903). 

3  Hitchman  Coal  &  Coke  Co.  v.  Mitchell,  245  U.  S.  229,  38  Sup.  Ct.  65 

(1917). 


no       PRINCIPLES  OF  LABOR  LEGISLATION 

employ  peaceful  persuasion  to  induce  the  new  employees 
to  join  them.  They  may  employ  persuasion,  but  must  not 
resort  to  intimidation.  But  there  is  no  distinct  dividing  line 
between  persuasion  and  intimidation.  In  strikes,  and  often 
also  in  boycotts,  the  union  stations  pickets  near  the  employer's 
premises  to  observe  and  speak  to  prospective  employees  or 
customers.  Does  the  establishment  of  such  a  picket  line  of 
itself  amount  to  intimidation?  One  view  was  forcibly  ex- 
pressed by  United  States  Judge  McPherson : 1  "  There  is  and 
can  be  no  such  thing  as  peaceful  picketing,  any  more  than 
there  can  be  chaste  vulgarity,  or  peaceful  mobbing,  or  lawful 
lynching.  When  men  want  to  converse  or  persuade,  they  do 
not  organize  a  picket  line.  .  .  .  The  argument  seems  to  be  that 
anything  short  of  physical  violence  is  lawful.  .  .  .  But  the 
peaceful,  law-abiding  man  can  be  and  is  intimidated  by  gesticu- 
lations, by  menaces,  by  being  called  harsh  names,  and  by  being 
followed,  or  compelled  to  pass  by  men  known  to  be  unfriendly. 
.  .  .  The  frail  man,  or  the  man  who  shuns  disturbances,  or  the 
timid  man,  must  be  protected,  and  the  company  has  the  right 
to  employ  such." 

This  view,  that  picketing  always  amounts  to  intimidation, 
has  been  adopted  also  by  the  courts  of  California.2  Though 
they  recognize  the  strike  and  the  boycott  as  legal,  they  will 
not  permit  picketing  in  furtherance  of  either.  In  a  Massa- 
chusetts case  the  presence  of  two  pickets  at  a  factory  entrance 
was  held  to  be  intimidating.3  All  picketing  has  been  con- 
demned also  by  the  courts  of  Illinois,  Michigan,  New  Jersey, 
Oregon,  Pennsylvania,  Washington.4  Alabama,  Colorado,  and 


1  Atchison,  T.  &  S.  F.  Ry.  v.  Gee,  139  Fed.  582  (1905). 

2  Pierce  v.  Stablemen's  Union,  156  Cal.  70,  103  Pac.  324  (1909).     Ex 
parte  Williams,  158  Cal.  550,  in  Pac.  1035  (1910). 

3  Vegelahn  v.  Guntner,  167  Mass.  92,  44  N.  E.  1077  (1896). 

4  Franklin  v.  People,  220  111.  355   (1906);    Barnes  v.  Typographical 
Union,  232  111.  402,  424  (1908);  Beck  v.  Railway  Teamsters,  118  Mich. 
497,  77  N.  W.  13  (1898);   Ideal  Mfg.  Co.  v.  Ludwig,  149  Mich.  133,  112 
N.  W.  723  (1907);   George  Jonas  Glass  Co.  v.  Glass  Bottle  Blowers,  72 
N.  J.  Eq.  653,  66  Atl.  953  (1907),  77  N.  J.  Eq.  219,  79  Atl.  262  (1911); 
Hall  v.  Johnson,  87  Ore.  21,  169  Pac.  515  (1917);  O'Neil  v.  Behanna,  182 
Pa.  236,  37  Atl.  843  (1897);   St.  Germain  v.  Bakery  Workers,  97  Wash. 
282,  166  Pac.  665  (1917).     To  the  same  effect  are  decisions  by  federal 
courts  in  Otis  Steel  Co.  v.  Molders,  no  Fed.  698  (1901);    Knudsen  v, 
Benn,  123  Fed.  636  (1903);    Kolley  v.  Robinson,  109  C.  C.  A.  247,  187 
Fed.  415  (1911). 

•is 


COLLECTIVE  BARGAINING  in 

Washington  had,  by  1920,  statutes  making  picketing  a  misde- 
meanor, and  many  cities  had  ordinances  to  the  same  effect.1 

There  are  even  more  cases  which  hold  that  peaceful  picket- 
ing is  lawful.  This  is  well-established  law  in  Arizona,  Indiana, 
Minnesota,  Missouri,  Montana,  New  Hampshire,  New  York, 
Oklahoma,  and  Virginia.2  But  this  still  leaves  open  the 
question,  when  is  picketing  peaceful?  In  answer  to  this 
question  a  federal  court  said: 3  "The  defendants  claim  to  have 
the  belief  that  physical  violence  alone  is  to  be  condemned. 
But  all  persons  know  that  intimidation  by  words,  by 
menaces,  by  numbers,  by  position,  and  by  many  other 
things  is  just  as  effective  as  by  using  clubs  or  brass  knuckles 
or  knives." 

It  is  the  manner  in  which  the  picketing  is  conducted  which 
determines  its  legality.  Veiled  threats  toward  the  new  em- 
ployees are  condemned  just  as  strongly  as  are  acts  of  physical 
violence.  Many  courts  have  held  that  if  the  number  of  the 
pickets  is  large,  the  picketing  is  necessarily  intimidating.4 
Others  have  gone  so  far  as  to  assert  that  speaking  to  the  new 


1  Alabama,  Code  1907,  sees.  6494-95;    Colorado  M.  A.  S.  1912,  sees. 
464-465;    Washington,  L.  1915,  C.  181.     Among  the  cities  which  have 
adopted  anti-picketing  ordinances  are  Anniston  (Ala.),  El  Paso  (Tex.), 
Indianapolis  and  Noblesville  (Ind.),  Oakland,  San  Diego,  and  San  Fran- 
cisco (Calif.).     The  El  Paso  ordinance  was  held  valid  by  the  Texas  Court 
of  Criminal  Appeals  in  Ex  parte  Stout,  198  S.  W.  967  (1917).     Portland 
(Ore.)  adopted  by  referendum  an  anti-picketing  ordinance  which  was 
declared  unconstitutional  by  the  state  supreme  court. 

2  Truax  v.  Cooks  and  Waiters,   19  Ariz.  379,   171   Pac.   121    (1917); 
Shaughnessy  v.  Jordan,  184  Ind.  499,  II  N.  E.  622  (1916);    Steffes  v. 
Motion  Picture  Operators,  136  Minn.  200,  161  N.  W.  524  (1917);    St. 
Louis  v.  Gloner,  210  Mo.  502,  109  S.  W.  30  (1908);   Empire  Theater  Co. 
v.  Cloke,  53  Mont.  183,  163  Pac.  107  (1917);    White  Mt.  Freezer  Co. 
v.  Murphy,  78  N.  H.  398,  101  Atl.  357  (1917);    Butterick  Pub.  Co.  v. 
Typographical  Union,  50  Misc.  I,  100  N.  Y.  Supp.  292  (1906);    In  re 
Sweitzer,   (Oklahoma),  162  Pac.   1134  (1917);    Everett- Waddey  Co.   v. 
Typographical  Union,  105  Va.  188,  53  S.  E.  273  (1906).     A  leading  de- 
cision of  a  federal  circuit  court  of  appeals  to  the  same  effect  is  Allis- 
Chalmers  Co.  v.  Iron  Molders,  166  Fed.  45  (1908). 

8  Union  Pacific  R.  Co.  v.  Ruef,  120  Fed.  102  (1903). 

4  American  Steel  &  Wire  Co.  v.  Wire  Drawers,  90  Fed.  598  (1898); 
Union  Pacific  R.  Co.  v.  Ruef,  120  Fed.  102  (1903);  Pope  Motor  Car  Co. 
v.  Keegan,  150  Fed.  148  (1906);  Allis-Chalmers  Co.  v.  Iron  Molders, 
150  Fed.  155  (1906);  Foster  v.  Retail  Clerks,  39  Misc.  48,  78  N.  Y. 
Supp.  860  (1902) ;  Searle  Mfg.  Co.  v.  Terry,  56  Misc.  265,  106  N.  Y.  Supp. 
438  (1905);  O'Neil  v.  Behanna,  182  Pa.  236,  37  Atl.  843  (1897);  Jones  v. 
Van  Winkle,  131  Ga.  336.  62  S.  E.  236  (1908). 


ii2       PRINCIPLES  OF  LABOR  LEGISLATION 

employees  against  their  will  is  intimidation.1  Often  the  pay- 
ment of  union  benefits  to  induce  the  new  employees  to  join 
the  strikers  has  been  prohibited  in  injunctions;  and  there  are 
a  few  decisions  sustaining  such  prohibitions.2  In  most  cases 
involving  picketing  which  come  before  the  courts  the  evidence 
is  contradictory.  On  behalf  of  the  strikers  testimony  is  pre- 
sented that  the  picketing  has  been  conducted  in  an  orderly 
manner,  and  that  there  have  been  no  threats  or  acts  of  vio- 
lence. The  employers  in  their  turn  allege  that  force,  threats, 
and  violence  have  been  resorted  to,  and  often  they  are  able 
to  point  to  specific  acts  of  this  character.  Usually,  however, 
the  evidence  leaves  doubt  as  to  the  responsibility  of  the  union 
for  the  acts  of  violence  which  have  occurred.  Such  respon- 
sibility is  assumed  in  many  cases.  There  are  few  standards 
which  the  courts  may  employ  to  determine  whether  picketing 
has  in  fact  been  peaceful  or  intimidating.  Hence,  again,  their 
bias  is  often  determining,  and  the  decisions  have  more  fre- 
quently gone  against  organized  labor  than  in  its  favor. 

Strikes,  boycotts,  and  picketing  have  often  been  held  il- 
legal. These  are  the  weapons  through  which  labor  secures 
and  maintains  collective  bargains  with  employers.  Collective 
agreements  are  worthless  without  a  strong  union  to  back  them 
up.  They  are  not  enforceable  in  courts  of  law.  The  unwill- 
ing employer  is  kept  from  violating  them  only  through  fear 
of  a  strike.  Real  collective  bargaining  implies  equal  strength 
upon  both  sides.  It  results  only  when  each  side  is  aware  of 
the  strength,  ability,  and  willingness  of  the  other.  Then  a 
joint  conference  is  held  and  a  compromise  is  effected.  Neither 
will  violate  the  agreement  while  the  other  party  maintains 
its  strength.  Thus,  it  will  be  seen  that  restrictions  upon  the 
weapons  which  labor  may  employ  in  trade  disputes  are  in 
fact  limitations  of  its  right  to  bargain  collectively. 

The  Clayton  act  of  19 14,3  many  believe,  has  removed  the 


1  Frank  v.  Herold,  63  N.  J.  Eq.  443,  52  Atl.  152  (1901);  Jersey  Printing 
Co.  v.  Cassidy,  63  N.  J.  Eq.  759,  53  Atl.  230  (1902);  Goldfield  Mines  Co. 
v.  Miners'  Union,  159  Fed.  500  (1908). 

2  Jersey   Printing    Co.   if.   Cassidy,   63   N.   J.   Eq.   759,   53   Atl.    230 
(1902);    Tunstall  v.  Steans  Coal  Co.,   195  Fed.  808   (1911).     To  con- 
trary, Levy  v.  Rosenstein,  66  N.  Y.  Supp.  101  (1900);   Everett- Waddey 
Co.  v.  Typographical  Union,  105  Va.  188,  53  S.  E.  273  (1906). 

3  United  States,  Laws  1913-1914,  C.  323. 


COLLECTIVE  BARGAINING  113 

restrictions  which  hamper  trade  unions.  The  most  tangible 
gain  to  labor  is  the  provision  for  jury  trial  in  contempt  cases 
where  the  offense  charged  is  also  indictable  as  a  crime.  This 
act  further  provides  that  injunctions  issued  by  the  federal 
courts  shall  not  prohibit  the  quitting  of  work,  the  refusal  to 
patronize,  peaceful  picketing,  or  peaceful  persuasion.  Nor 
are  these  acts  to  be  considered  "violations  of  any  law  of  the 
United  States."  These  provisions  are  to  apply  whether  these 
acts  are  done  "singly  or  in  concert."  Yet  those  in  charge  of 
this  legislation  pointed  out  that  it  did  not  modify  the  law  of 
conspiracy.  When  workingmen  combine  to  injure  an  em- 
ployer or  non-unionists,  their  illegal  purpose  colors  all  their 
conduct.  Quitting  work,  for  instance,  though  ordinarily 
lawful  whether  done  "singly  or  in  concert,"  becomes  unlawful 
when  undertaken  in  pursuance  of  an  unlawful  conspiracy. 
Hence,  the  Clayton  act  seems  to  make  no  material  modifica- 
tions in  the  substantive  rights  of  employers  and  employees. 
Certainly  it  does  not  affect  cases  in  the  state  courts,  which 
far  outnumber  those  in  the  federal  courts. 

(4)  Restrictions  on  Employers  and  Employees 

Do  similar  restrictions  apply  to  employers?  In  theory, 
yes,  in  practice,  no.  While  the  workingmen's  right  to  strike 
is  restricted,  the  employers'  right  to  discharge  is  absolute. 
In  the  last  decades  many  states  have  enacted  statutes  pro- 
hibiting employers  from  coercing  workmen  into  surrendering 
their  right  to  belong  to  labor  unions  through  threatening 
them  with  discharge  unless  they  comply  with  this  demand. 
These  statutes  have  uniformly  been  held  unconstitutional,  and 
the  Supreme  Court  of  the  United  States  is  among  the  courts 
holding  this  view.1  The  Supreme  Court  has  also  held  that 
where  workmen  have  signed  an  agreement  to  the  effect  that 
they  will  not  belong  to  any  labor  union,  all  efforts  made  there- 
after to  induce  them  to  join  a  union  are  illegal.2  These  de- 
cisions have  made  it  unquestionably  lawful  for  an  employer 

1  Adair  v.  United  States,  208  U.  S.  161,  28  Sup.  Ct.  277  (1908);  Coppage 
v.  Kansas,  236  U.  S.  I,  35  Sup.  Ct.  240  (1915). 

2  Hitchman  Coal  &  Coke  Co,  v,  Mitchell,  245  U.  S,  229,  38  Sup.  Ct.  65 


ii4       PRINCIPLES  OF  LABOR  LEGISLATION 

to  maintain  a  shop  closed  to  all  union  workmen.  With  these 
decisions  must  be  contrasted  those  relating  to  the  establish- 
ment of  a  closed  shop  through  the  effort  of  the  union.  It  is 
true  that  it  has  often  been  stated  that  there  is  nothing  unlawful 
about  an  agreement  that  only  union  men  shall  be  employed, 
if  the  employer  voluntarily  enters  into  such  an  arrangement. 
The  hub  of  the  situation  is  that  such  contracts  are  usually  not 
entered  into  voluntarily,  but  are  gained  through  strikes.  As 
has  been  noted,  such  strikes  have  often  been  condemned  as 
an  effort  to  injure  non-unionists,  or  as  amounting  to  coercion. 
Yet  the  Supreme  Court  has  held  that  it  is  not  "coercion"  to 
threaten  to  discharge  a  workman  unless  he  will  renounce  his 
union  membership.1 

The  theory  of  the  absolute  right  of  the  employer  to  dis- 
charge results  also  in  the  virtual  legalization  of  the  blacklist. 
Most  of  the  states  of  the  union  have  laws  prohibiting  black- 
listing; but  they  have  been  dead  letters.  The  explanation 
lies  in  the  fact  that  employers  may  discharge  or  refuse  to 
employ  any  workman  who  is  an  "agitator"  or  who  belongs  to 
a  union.  Anti-blacklist  laws  which  merely  prohibit  the  circu- 
lation of  information  as  to  who  are  union  members  are  prob- 
ably constitutional,  although  one  federal  decision  does  not 
even  grant  that  much.2  He  who  circulates  this  information 
may  be  punished;  but  the  employer  who  acts  upon  it  is  entirely 
within  his  rights.  His  reasons  for  refusing  to  employ  or  for 
discharging  cannot  be  questioned  in  any  court.  In  this  day 
of  the  telephone,  the  telegraph,  water-marked  paper,  and  the 
card  system,  it  is  well-nigh  impossible  to  prove  who  furnished 
the  information  upon  which  a  blacklisted  workman  was  dis- 
charged. Moreover,  the  supplying  of  such  information  by  a 
former  employer  upon  the  request  of  the  present  employer 
is  regarded  as  privileged.  It  is  expressly  declared  legal  in 
the  anti-blacklist  laws  of  many  states.  This  is  the  simplest 
and  most  common  manner  in  which  an  employer  secures  in- 
formation about  the  "records"  of  his  employees.  A  work- 
man discharged  for  "union  activity"  as  a  result  of  informa- 
tion secured  in  this  manner  has  no  redress  against  either  his 
employer  or  his  former  employer.  If  the  information  was 

1  Coppage  v.  Kansas,  236  U.  S.  I,  35  Sup.  Ct.  240  (1915). 

2  Boyer  v.  Western  Union,  124  Fed.  246  (1903). 


COLLECTIVE  BARGAINING  115 

supplied  by  an  employers'  association  or  furnished  gratuitous- 
ly by  the  former  employer,  the  blacklisted  workman  cannot 
recover  unless  he  proves  who  furnished  the  information  and 
that  he  was  discharged  as  a  result  thereof.  He  cannot  es- 
tablish either  proposition  unless  the  employer  who  discharged 
him  is  in  sympathy  with  him.1  This  is  not  the  case  where 
the  reason  for  the  discharge  was  membership  in  a  labor  union. 
To  all  intents  and  purposes  blacklisting  is  legal  throughout 
the  United  States. 

That  the  blacklist  is  a  powerful  weapon  in  combating  labor 
organizations  cannot  be  questioned.  To  offset  its  effects 
unions  have  often  adopted  the  policy  of  giving  employment 
as  organizers  to  members  who  have  been  blacklisted.  Nor 
is  there  any  doubt  that  this  weapon  is  extensively  used.  There 
is  no  industrial  center  in  which  there  are  not  scores  who  claim 
to  have  been  blacklisted.  The  boycott  in  many  respects  is 
the  counterpart  of  the  blacklist ;  but  while  blacklisting  is  prac- 
tically unrestricted  by  the  laws  and  the  courts,  labor's  use 
of  the  boycott  is  very  seriously  interfered  with. 

In  theory  the  same  principles  are  applied  in  reference  to 
the  activities  of  employers  as  to  those  of  labor.  The  absolute 
right  of  employers  to  discharge  is  stated  to  be  paralleled  by 
the  right  of  the  workmen  to  quit  for  any  or  no  reason.  In 
all  the  cases  in  which  the  right  to  discharge  was  at  issue  no 
element  of  combination  was  involved.  Hence,  it  may  be 
said  that  employers  have  not  been  freed  from  the  conspiracy 
laws.  But  the  important  fact  is  that  in  cases  involving  em- 
ployers this  question  does  not  arise.  Even  when  employers 
act  in  concert,  the  number  of  individuals  involved  is  usually 
small,  and  the  proof  that  there  is  a  combination  is  difficult 
to  obtain.  Because  of  their  small  numbers  employers  can 
effectively  act  together  without  giving  much  publicity  to  their 
combination.  In  fact,  in  the  case  of  the  blacklist,  its  success 
depends  upon  secrecy.  On  the  other  hand,  every  collective 
action  of  labor  must  necessarily  be  public.  A  strike  cannot 
take  place  without  a  meeting  and  a  vote.  The  boycott  de- 
pends for  success  upon  publicity.  The  union  must  resort  to 

1  This  explains  why  workmen  who  were  discharged  upon  the  demand 
of  employers'  liability  insurance  companies  have  sometimes  been  able 
to  recover  from  these  companies. 


n6       PRINCIPLES  OF  LABOR  LEGISLATION 

the  public  rights  of  free  speech,  free  press,  and  public  assembly; 
but  the  employers'  association  succeeds  through  private  cor- 
respondence. Again,  it  is  evident  that  the  collective  activities 
of  labor  are  much  more  likely  to  interfere  with  the  rights 
of  the  public  than  are  the  acts  of  the  employers.  Pickets 
must  use  the  streets,  agitation  may  lead  to  violence,  but  the 
procuring  of  new  employees  is  but  an  incident  in  the  regular 
conduct  of  business.  Another  factor  operating  to  give  em- 
ployers a  real  advantage  is  the  difficulty  of  getting  the  ques- 
tion of  the  legality  of  their  actions  before  the  courts.  The 
strike  and  the  boycott  may  be  questioned  because  they  in- 
vade the  rights  of  the  employers  to  free  access  to  the  labor 
market  and  to  the  commodity  market.  But  no  right  of  the 
workingman  is  violated  when  he  is  discharged,  or  when  a  new 
man  is  given  the  job  which  he  quit  in  order  to  go  on  strike. 

(5)  Justification  of  True  Collective  Bargaining 

Viewing  the  situation  from  the  point  of  view  of  the  practi- 
cal results,  the  conclusion  is  reached  that  the  law  to-day 
seriously  restricts  labor  in  its  collective  action,  while  it  does 
not  interfere  with  the  parallel  weapons  of  the  employers.  Is 
this  result  socially  desirable?  Fundamentally  the  question  is 
whether  collective  bargaining  by  labor  should  be  encouraged 
or  discouraged.  If  collective  bargaining  is  desirable,  or- 
ganized labor  must  be  conceded  the  free  use  of  the  methods 
through  which  it  can  secure  and  maintain  trade  agreements. 
The  right  of  organization  is  valueless  unless  it  is  accompanied 
by  the  right  to  make  the  organization  effective. 

The  issue  of  the  desirability  of  collective  bargaining  by 
labor  is  much  confused  by  the  parallel  of  the  combination  to 
control  prices.  Combinations  to  monopolize  commodities  are 
against  public  policy ;  why  then  should  labor  unions  be  favored 
in  the  law?  This  parallel  overlooks  the  vital  distinction  be- 
tween commodities  and  labor.  The  "commodity,"  labor,  can 
never  be  divorced  from  the  human  being,  the  laborer.  The 
labor  contract  is  a  bargain,  not  only  for  wages,  but  also  for 
hours  of  labor,  physical  conditions  of  safety  and  health,  risks 
of  accident  and  disease.  Labor  cannot  be  placed  upon  the 
same  plane  with  commodities,  which  are  external  and  un- 


COLLECTIVE  BARGAINING  117 

human.  It  is  in  the  interest  of  the  public  that  the  most  favor- 
able conditions  of  labor  shall  prevail.  Since  labor  constitutes 
such  a  large  part  of  the  public,  the  general  welfare  depends 
intimately  upon  its  advancement.  While  the  public  suffers 
from  high  prices,  it  benefits  from  high  wages. 

It  is  apparent  that  the  individual  laborer  is  at  a  great  dis- 
advantage in  bargaining  with  an  employer.  The  employer 
is  often  a  great  corporation,  which  is  itself  a  combination  of 
capital.  But  the  disadvantage  of  the  laborer  is  even  more 
fundamental.  Being  propertyless,  he  has  no  opportunity  to 
make  his  living  but  to  work  upon  the  property  of  others. 
Having  no  resources  to  fall  back  upon,  he  cannot  wait  until 
he  can  drive  the  most  favorable  bargain.  It  is  a  case  of  the 
necessities  of  the  laborer  pitted  against  the  resources  of  the 
employer.  It  is  only  when  labor  bargains  collectively  that 
its  bargaining  power  approximates  equality  with  that  of 
capital. 

To  treat  labor  unions  as  being  in  the  same  category  with 
combinations  to  control  prices  is  a  misunderstanding  of  their 
functions.  Labor  unions  are  not  business  organizations,  like 
corporations  or  partnerships.  They  have  nothing  to  sell. 
When  they  enter  into  a  trade  agreement  they  do  not  obligate 
themselves  to  furnish  a  given  number  of  laborers,  or  any 
laborers,  at  the  terms  agreed  upon.  They  cannot  do  so, 
since  they  cannot  compel  their  members  to  labor  if  these  do 
not  wish  to  work.  The  members  of  the  union  do  not  labor 
for  the  organization,  but  for  themselves  and  their  families. 
The  difference  between  a  labor  union  and  a  business  organiza- 
tion, and  between  a  trade  agreement  and  an  ordinary  con- 
tract, is  well  expressed  in  a  decision  of  the  Supreme  Court  of 
Kentucky.1  "A  labor  union,  as  such,  engages  in  no  business 
enterprise.  It  has  not  the  power,  and  does  not  undertake,  to 
supply  employers  with  workmen.  It  does  not,  and  cannot, 
bind  its  members  to  a  service  for  a  definite,  or  any  period  of 
time,  or  even  to  accept  the  wages  and  regulations  which  it 
might  have  induced  an  employer  to  adopt  in  the  conduct 

1  Hudson  v.  Cincinnati,  N.  0.  &  T.  P.  R.  Co.,  152  Ky.  711,  154  S.  W.  47 
(1913).  See  also  Burnetta  v.  Marcelline  Coal  Co.,  180  Mo.  241,  79  S.  W. 


136  (1906) ;  Barnes  v.  Berry,  157  Fed.  883  (1908);  Fell  v.  Berry,  124  App. 

.  336,  108  N.  Y.  Supp.  669  (1907).     T( 
183  N.  Y.  207,  76  N.  E.  5  (1905). 


Div.  336,  108  N.  Y.  Supp.  669  (1907).     To  the  contrary,  Jacobs  v.  Cohen, 


n8       PRINCIPLES  OP  LABOR  LEGISLATION 

of  his  business.  Its  function  is  to  induce  employers  to  estab- 
lish usages  in  respect  to  wages  and  working  conditions  which 
are  fair,  reasonable,  and  humane,  leaving  to  its  members 
each  to  determine  for  himself  whether  or  not  and  for  what 
length  of  time  he  will  contract  with  reference  to  such  usages. 
...  It  [the  trade  agreement]  is  just  what  it,  on  its  face, 
purports  to  be,  and  nothing  more.  It  is  merely  a  memoran- 
dum of  the  rates  of  pay  and  regulations  governing,  for  the 
period  designated,  enginemen  employed  on  the  Chattanooga 
division  of  the  company's  railway.  Having  been  signed  by 
the  appellee,  it  is  evidence  of  its  intention,  in  the  conduct  of 
its  business  with  enginemen  on  said  division,  to  be  governed 
by  the  wages  and  rules,  and  for  the  time  therein  stipulated. 
Enginemen  in,  or  entering,  its  service  during  the  time  limit 
contract  with  reference  to  it.  There  is  on  its  face  no  con- 
sideration for  its  execution.  It  is  therefore  not  a  contract. 
It  is  not  an  offer,  for  none  of  its  terms  can  be  construed  as  a 
proposal.  It  comes  squarely  within  the  definition  of  usage  as 
defined  in  Byrd  v.  Beall,  150  Ala.  122,  43  So.  749.  There 
the  court,  in  defining  usage,  said  'usage'  refers  to  'an  estab- 
lished method  of  dealing,  adopted  in  a  particular  place,  or 
by  those  engaged  in  a  particular  vocation  or  trade,  which 
acquires  legal  force,  because  people  make  contracts  with  ref- 
erence to  it.'" 

The  so-called  "contract"  which  a  trade  union  makes  with 
an  employer  or  an  employers'  association  is  merely  a  "gentle- 
men's agreement,"  a  mutual  understanding,  not  enforceable 
against  anybody.  It  is  an  understanding  that,  when  the  real 
labor  contract  is  made  between  the  individual  employer  and 
the  individual  employee,  it  shall  be  made  according  to  the 
terms  previously  agreed  upon.  But  there  is  no  legal  penalty 
if  the  individual  contract  is  made  differently.  To  enforce  the 
collective  contract  would  be  to  deny  the  individual's  liberty 
to  make  his  own  contract. 

That  capital  and  labor  should  be  treated  equally  is  a  prop- 
osition fundamental  to  American  law.  But  the  dual  bar- 
gaining functions  of  capital  must  be  distinguished.  The  price 
bargain  is  something  very  distinct  from  the  wage  bargain. 
The  corporation  deals  with  both;  the  laborer  only  with  the 
wage  bargain.  Manufacturers'  associations  deal  with  the  price 


COLLECTIVE  BARGAINING  119 

bargain;  employers'  associations  with  the  wage  bargain. 
Trade  unions  do  not  deal  with  consumers  at  all.  Their  func- 
tion is  to  offset  the  advantage  the  employer  enjoys  in  bar- 
gaining about  wages  with  the  individual  laborer.  Equal  pro- 
tection of  the  law  does  not  consist  in  treating  a  trade  union 
like  a  manufacturers'  association,  but  in  treating  it  like  an  em- 
ployers' association.  This  is  not  class  legislation,  but  sound 
classification. 

Unions  of  labor  are  just  as  likely  to  abuse  their  power  as  are 
unions  of  manufacturers.  No  organization  can  be  trusted 
with  unlimited  power.  In  the  case  of  the  price  bargain  the 
public  has  been  compelled  to  enact  railroad  commission  laws, 
in  order  to  keep  down  the  prices  charged  by  corporations.  Is 
there  similar  reason  for  public  interference  in  the  case:  of  the 
wage  bargain?  Trade  unions  have  hitherto  been  treated  as 
organizations  for  private  purposes.1  Should  they  be  subjected 
to  public  regulation,  as  have  been  the  monopolistic  combi- 
nations ? 

There  is  a  better  safeguard  than  public  regulation  against 
the  abuse  of  power  by  trade  unions.  This  is  the  power  of  the 
employers  to  resist  such  demands.  Herein  lies  the  raison 
d'etre  of  the  employers'  association.  It  is  to  the  interest  of 
the  public,  not  only  that  labor  shall  be  free  to  bargain  collec- 
tively, but  that  the  employers  should  also  be  allowed  to 
combine.  Without  organization  -upon  both  sides  there  is  only 
one-sided  or  pseudo-collective  bargaining.  When  a  corpora- 
tion deals  with  individual  consumers  or  individual  wage- 
earners,  all  the  advantages  of  combination  are  on  one  side. 
Similarly,  pseudo-collective  is  the  bargaining  maintained  by  the 
so-called  "open  shop"  organizations  of  employers.  Each 
wage-earner  is  compelled  to  accept  the  bargain  which  the 
association  requires  its  members  to  demand  when  hiring  a 
laborer.  Labor  unions  also  practise  one-sided  collective  bar- 
gaining when  they  compel  employers  as  individuals  to  "sign 
up"  the  agreements  they  offer.  They  use  the  power  of  their 
combination  to  prevent  the  employers  from  acting  collec- 
tively. The  labor  union  which  refuses  to  recognize  the  em- 
ployers' association  is  setting  up  a  pretense  of  collective  bar- 


1  See  Coppage  v.  Kansas,  236  U.  S.  I,  35  Sup.  Ct.  240  (1915). 


120       PRINCIPLES  OF  LABOR  LEGISLATION 

gaining,  similar  to  the  pretense  of  the  employers'  association 
when  it  proclaims,  under  the  name  of  the  "open  shop,"  that 
it  is  entirely  willing  to  employ  union  men  but  refuses  to  con- 
fer with  the  union.  It  is  the  usual  outcome  of  such  practices 
in  these  one-sided  bargains  for  the  union  to  insist  on  the 
closed  shop  against  non-unionists,  and  for  the  employers  under 
the  name  of  "open  shop "  to  run  a  non-union  shop.  Theoreti- 
cal principles  of  freedom  are  proclaimed  to  gain  popular  or 
legal  support;  but  in  actual  practice  each  side  when  pos- 
sessed of  unlimited  power  rides  rough-shod  over  the  rights 
of  others. 

Real  collective  bargaining  is  something  very  different.  It 
is  premised  upon  organization  on  both  sides.  This  requires 
getting  together  in  a  joint  conference,  and,  through  represen- 
tatives, making  a  trad-e  agreement  binding  upon  individuals 
on  both  sides.  A  compromise  between  the  extreme  positions 
is  the  result.  While  it  is  in  force,  a  trade  agreement  is  the 
supreme  law  of  the  industry.  It  may  even  override  the  con- 
stitutions and  the  by-laws  of  the  two  associations.  Dictation 
is  autocracy;  conference  is  democracy.  Trade  agreements 
are  likely  to  be  tolerably  satisfactory  to  both  sides,  as  both 
have  had  a  voice  in  framing  them.  In  real  collective  bargain- 
ing also  lies  the  protection  of  the  public.  It  means  fair  condi- 
tions for  labor,  and  yet  conditions  under  which  industry 
can  operate.  It  is  an  assurance  of  a  minimum  of  industrial 
disturbance. 

Restrictions  in  the  law  upon  collective  action  upon  either 
side  are  inconsistent  with  collective  bargaining.  Complete 
freedom  to  combine  should  be  given  to  both  employers  and 
employees.  This  policy  requires  no  change  in  the  status  in 
law  of  employers'  associations  and  the  weapons  they  use 
to  combat  labor.  Some  dead-letter  statutes  are  directed 
against  them;  but  these  are  of  no  practical  importance.  It  is 
otherwise  as  to  the  restrictions  upon  collective  action  by  labor. 
Moreover,  these  restrictions  are  likely  to  be  even  more  seri- 
ous in  the  near  future.  The  damage  suit  looms  up  as  a  new 
menace  to  labor.  The  injunction  has  lost  many  of  its  terrors 
on  account  of  the  frequency  of  its  use.  It  is  now  more  of  an 
annoyance  than  a  real  obstacle  to  labor;  but  the  damage  suit 
is  likely  to  mean  the  destruction  of  unionism  in  its  present  form. 


COLLECTIVE  BARGAINING  121 

(6)  Damage  Suits 

While  there  have  been  many  damage  suits  in  connection 
with  labor  disputes  and  many  judgments  against  unions  or 
their  members,  only  two  of  these  cases  are  important:  the 
Danbury  hatters'  case  l  and  the  Arkansas  coal  miners'  case.2 
Both  of  these  cases  involved  suits  for  triple  damages  under 
the  Sherman  anti- trust  act,  and  in  both  the  cause  of  action 
antedated  the  passage  of  the  Clayton  act. 

The  Danbury  hatters'  case  was  in  the  courts  from  1903  to 
1917  and  was  three  times  before  the  Supreme  Court  of  the 
United  States.  In  the  end  the  plaintiff  secured  a  judgment  of 
nearly  $300,000  (including  interest)  against  175  members  of 
the  hatters'  union.  The  damages  awarded  were  for  losses  sus- 
tained through  a  boycott  conducted  by  the  union  officers. 
Only  a  few  of  the  defendants  had  any  direct  connection  with 
this  boycott.  They  were  held  liable  because  they  remained 
members  of  the  union  after  they  knew  or  had  reason  to  know 
that  the  boycott  was  being  conducted  by  their  officers  and  agents. 

The  Arkansas  coal  miners'  case  has  been  in  the  federal  courts, 
since  1914.  It  is  premised  upon  the  destruction  by  violence 
of  mining  property  in  a  strike  provoked  by  an  attempt  of  the 
plaintiffs  to  operate  their  mines  as  ' '  open  shops ' '  in  violation 
of  a  trade  agreement.  This  suit  runs  against  the  United  Mine 
Workers  of  America,  several  affiliated  unions,  and  some  in- 
dividuals who  participated  in  the  violence.  In  the  trial  court 
a  judgment  was  rendered  against  the  defendants  for  $600,000, 
plus  interest,  costs,  and  attorneys'  fees.  This  decision  was 
affirmed  by  the  Circuit  Court  of  Appeals  of  the  Eighth  Circuit, 
with  the  exception  of  the  allowance  of  interest.  An  appeal  was 
in  1920  pending  before  the  Supreme  Court  of  the  United  States. 

The  decisions  in  these  cases  have  established  the  principle 
that  labor  unions  and  their  individual  members  are  respon- 
sible, without  limit,  for  the  unlawful  actions  of  the  union 
officers  and  agents  which  they  have  in  any  manner  authorized 
or  sanctioned.  Such  antecedent  authorization  or  subsequent 


1  Loewe  v.  Lawlor,  208  U.  S.  274,  28  Sup.  Ct.  301  (1908),  235  U.  S.  522, 
35  Sup.  Ct.  170  (1915). 

-  Dowd  t>.  Unitod  Mine  Workers,  235  Fed.  I  (1916) ;  Coronado  Coal  Co. 
v.  United  Mine  Workers  (Circuit  Court  of  Appeals,  1919). 


122       PRINCIPLES  OF  LABOR  LEGISLATION 

approval  of  unlawful  acts  does  not  require  to  be  expressed,  but 
may  be  inferred  from  all  the  facts  in  the  situation.  Membership 
in  the  union  constitutes  approval  of  the  unlawful  acts  of  the 
officers  and  agents  when  these  have  been  given  wide  publicity. 

Many  other  suits  against  unions  or  their  members  for  dam- 
ages in  connection  with  labor  disputes  were  in  1920  pending 
in  the  courts,  involving  in  toto  several  million  dollars.  Most 
of  these  suits  were  pending  in  the  state,  not  in  the  federal 
courts,  and  were  not  premised  upon  the  anti-trust  laws. 
Decisions  already  rendered  have  made  it  clear  that  damages 
may  be  recovered  from  labor  unions  or  their  members  for  any 
kind  of  wrongful  conduct  in  their  behalf,  whether  it  be  a 
boycott,  an  illegal  strike,  violence,  or  unlawful  persuasion. 

The  real  menace  to  organized  labor  in  the  damage  suit  arises 
from  the  principles  governing  the  responsibility  of  labor  unions 
and  their  members  for  the  unlawful  acts  committed  in  their 
behalf.  It  is  often  contended  that  labor  unions  should  be 
made  financially  responsible  for  any  unlawful  conduct  of  their 
officers  and  agents.  Such  responsibility  unquestionably  exists 
already,  and  is  unlimited.  Neither  union  funds  nor  the  ac- 
cumulations of  individual  unionists  are  safe  from  seizure. 

The  menace  of  the  damage  suit  is  best  brought  out  in  the 
contrast  between  the  position  of  the  members  of  labor  unions 
and  that  of  stockholders  in  corporations.  It  is  evident  that 
labor  unions  are  very  much  looser  organizations  than  are  cor- 
porations. Unions  must  entrust  their  officers  with  great 
power;  the  rank  and  file  of  the  members  know  little  about 
what  the  officers  are  doing.  Even  when  members  disapprove 
of  the  actions  of  the  officers,  they  can  ill  afford  to  get  out  of 
the  union,  as  they  would  lose  their  insurance  benefits  and 
in  many  industries  would  find  it  difficult  to  get  a  job.  These 
are  reasons  why  the  members  of  labor  unions  should  not  be 
held  to  the  same  accountability  for  acts  done  in  their  be- 
half as  are  stockholders  in  corporations.  But  in  the  United 
States  the  members  of  labor  unions  have  the  greater  liability. 
For  a  tort  committed  in  behalf  of  a  corporation,  the  stock- 
holders can  be  held  only  to  the  extent  of  their  stock  subscrip- 
tion, or  double  the  amount,  under  certain  laws  regulating 
banks.  The  members  of  labor  unions  are  responsible  without 
limit  for  tortious  acts  done  in  their  behalf. 


COLLECTIVE  BARGAINING  123 

(7)  English  Law  of  Labor  Disputes 

Very  nearly  the  same  situation  which  has  been  created  in 
the  United  States  by  the  Danbury  hatters'  case  and  the 
Arkansas  coal  miners'  case  existed  in  England  from  1901  to 
1906,  as  a  result  of  the  decision  of  the  House  of  Lords  in  the 
Taff  Vale  case.1  In  that  case  a  union  of  railway  workers  was 
assessed  damages  in  excess  of  $200,000  on  account  of  injury 
to  the  company  through  acts  of  violence  during  a  strike. 
The  upshot  of  this  case  was  the  enactment  of  the  British 
trade  disputes  act  of  1906.  This  act  places  labor  unions  upon 
a  position  of  equality  with  employers'  associations,  and  dis- 
tinguishes both  from  combinations  to  control  prices.  It  pro- 
vides that  acts  done  by  a  combination,  either  of  employers  or 
employees,  "in  contemplation  or  furtherance  of  a  trade  dis- 
pute," shall  be  lawful  unless  they  would  be  unlawful  if  done 
by  one  person.  It  provides  further  that  such  acts  shall  not 
be  deemed  unlawful  because  they  interfere  with  another's 
free  access  to  the  labor  and  commodity  markets,  or  because 
they  amount  to  meddling  by  third  parties  with  contractual 
rights.  Thus,  the  law  of  conspiracy,  in  all  its  forms  of  state- 
ment, is  declared  not  to  be  applicable  to  labor  disputes. 
Moreover,  in  lieu  of  vague  prohibitions  of  "violence,"  "in- 
timidation," and  "coercion,"  England  has  definite  statutory 
declarations  as  to  the  conduct  which  is  unlawful.  The  divid- 
ing line  between  lawful  persuasion  and  unlawful  coercion  is 
fairly  definite,  so  that  all  who  read  may  know.  Picketing 
for  the  purpose  of  peacefully  obtaining  or  communicating 
information,  or  of  peacefully  persuading  another  to  work  or 
abstain  from  working,  is  lawful.  On  the  other  hand,  it  is 
unlawful  to  commit  acts  of  violence  or  sabotage,  or  persist- 
ently to  follow  another.  Nor  may  any  one  quit  work  in 
violation  of  a  contract  when  he  has  reason  to  know  that  the 
consequence  of  his  leaving  will  be  to  endanger  human  life, 
or  to  expose  valuable  property  to  injury,  or  to  deprive  a  city 
of  gas  or  water. 

In  English  law  there  are  no  doubts  as  to  the  legality  of 
labor  unions  or  of  employers'  associations.     Both  the  lockout 


1  70  L.  J.  K.  B.,  905  (1901). 


i24       PRINCIPLES  OF  LABOR  LEGISLATION 

and  the  strike  are  legal,  as  are  the  boycott  and  the  blacklist. 
Parallel  to  the  right  of  employers  to  get  new  workmen  is  the 
right  of  the  strikers  to  picket  peacefully  and  to  induce  them 
to  abstain  from  working.  England's  policy  is  to  allow  both 
sides  a  free  hand  for  a  fair  fight.  It  ignores  the  motives 
which  underlie  labor  disputes.  It  does  not  interfere  until  the 
line  of  intimidation  and  violence  has  been  crossed.  And  this 
is  a  line  definitely  established  by  statute,  and  not  left  wholly 
to  the  courts.  Thus  the  English  law  has  the  merits  of  cer- 
tainty and  practicality. 

The  most  radical  departure  in  the  British  trade  disputes 
act  must  still  be  noted.  It  is  the  exemption  of  trade  unions 
and  employers'  associations  and  their  members  from  all 
liability  in  tort  for  wrongful  acts  alleged  to  have  been  com- 
mitted in  their  behalf.  This  was  Parliament's  answer  to  the 
Taff  Vale  case.  It  made  it  impossible  to  maintain  any  dam- 
age suit  against  a  trade  union  or  an  employers'  association. 
This  is  a  greater  privilege  than  the  limited  liability  of  busi- 
ness corporations.  The  liability  is  not  merely  limited,  it  is 
removed  in  toto.  Even  though  a  union  may  be  responsible  for 
acts  of  violence,  it  cannot  be  sued  for  the  damage  it  caused. 
Our  courts  hold  the  members  of  labor  unions  to  the  unlimited 
liability  of  partnerships;  in  England  they  are  not  liable  at  all. 

The  position  given  in  England  to  trade  unions  and  em- 
ployers' associations  violates  that  concept,  fundamental  in 
law,  that  he  who  is  responsible  for  a  wrong  must  answer 
therefor.  But  an  overwhelming  majority  of  Parliament  be- 
lieved it  sound  policy  to  modify  this  principle  to  this  extent. 
Prior  to  the  Taff  Vale  case  damage  suits  were  never  brought 
in  England  against  trade  unions.  Whatever  may  have  been 
the  law,  they  enjoyed  exemption,  to  all  practical  purposes, 
from  actions  in  tort.  In  the  United  States,  also,  labor  unions 
until  recently  occupied  much  the  same  position.  And  this 
practical  exemption  of  unions  from  responsibility  in  damages 
has  led  to  no  dire  consequences.  Exemption  of  trade  unions 
and  employers'  associations  from  actions  in  tort  does  not 
mean  that  wrongs  they  commit  are  allowed  to  go  un- 
punished. The  union  members  who  are  guilty  of  acts  of 
violence  can  be  held  therefor,  both  criminally  and  in  tort; 
but  the  members  who  have  not  been  direct  participants 


COLLECTIVE  BARGAINING  125 

in  the  wrongdoing  cannot  be  held  civilly  liable  as  principals. 
As  a  curb  upon  union  violence,  it  is  doubtless  much  more 
effective  vigorously  to  prosecute  those  who  commit  the 
violence  than  to  take  away  the  property  of  entirely  inno- 
cent union  members. 

The  exceptional  position  given  in  English  law  to  trade 
unions  and  employers'  associations  rests  upon  the  proposition 
that  collective  bargaining  is  socially  desirable.  Trade  unions 
are  such  loose  organizations  that  a  rigid  application  of  the 
principles  of  agency  law  is  unjust.  ,  Such  a  doctrine  operates 
to  destroy  the  unions.  This  is  even  more  true  in  the  United 
States  than  in  England,  since  many  of  the  acts  of  unions 
that  are  lawful  there  are  unlawful  here. 

The  law  conceives  of  no  responsibility  other  than  financial 
responsibility,  and  of  no  check  other  than  that  furnished  by 
the  law.  But  a  more  satisfactory  check  upon  abuse  of  power 
by  unions  is  the  like  power  of  employers.  The  protection  of 
the  public  lies  in  the  equal  strength  of  both  parties  to  make 
the  wage  bargain.  To  this  end  restrictions  upon  collective 
action  upon  either  side  should  be  removed.  Thus  can  col- 
lective bargaining  in  the  voluntary  sense  be  maintained  and 
extended. 

2.  MEDIATION  BY  GOVERNMENT 

The  development  of  large  scale  production  and  the  growing 
complexity  and  interdependence  of  the  social  order  have  vast- 
ly increased  the  number  and  disastrousness  of  strikes  and 
lockouts.1  For  settling  differences  and  avoiding  these  far- 


1  In  the  German  Empire  there  were  10,484  strikes  in  the  years  1899  to 
1905,  affecting  938,543  men,  and  583  lockouts,  affecting  207,800  men. 
In  Austria  there  were  3,073  strikes  affecting  572,746  men  from  1894  to 
1904,  and  69  lockouts  involving  43,395  men.  In  France,  from  1890  to 
1904,  there  were  7,741  strikes  involving  1,865,620  men,  and  from  1900 
to  1904,  7  lockouts  involving  1,031  men.  In  Belgium  there  were  961 
strikes  affecting  274,654  men  from  1896  to  1904.  Italy  had  3,852  strikes 
affecting  855,066  men  from  1895  to  1903.  In  Great  Britain  and  Ireland 
there  were  6,030  strikes  and  lockouts  affecting  1,783,889  men  from  1895 
to  1905  (Maximilian  Meyer,  Statistik  der  Streiks  und  Aussperrungen, 
1907,  pp.  43,  45,  71,  78,  107,  116,  133,  154,  158,  184).  From  1881  to 
1905  there  were  in  the  United  States  36,757  strikes  involving  approxi- 
mately 8,703,824  employees,  and  1,546  lockouts  affecting  825,610  em- 
ployees (Commissioner  of  Labor,  Twenty-first  Annual  Report,  1906,  pp. 
476,  477,  736,  737). 


126       PRINCIPLES  OF  LABOR  LEGISLATION 

reaching  conflicts  there  have  been  devised  four  main  meth- 
ods: mediation  or  conciliation,  voluntary  arbitration,  com- 
pulsory investigation,  and  compulsory  arbitration. 

(i)  Definition  of  Terms 

By  mediation  or  conciliation  is  usually  meant  the  bring- 
ing together  of  employers  and  employees  for  a  peaceable 
settlement  of  their  differences  by  discussion  and  negotia- 
tion. The  mediator  may  be  either  a  private  or  an  official  in- 
dividual or  board,  and  may  make  inquiries  without  com- 
pulsory powers,  trying  to  induce  the  two  parties  by  mutual 
concessions  to  effect  a  settlement.  The  successful  mediator 
never  takes  sides  and  never  commits  himself  as  to  the  merits 
of  a  dispute.  He  acts  purely  as  a  go-between,  seeking  to 
ascertain,  in  confidence,  the  most  that  one  party  will  give 
and  the  least  that  the  other  will  take  without  entering  on 
either  a  lockout  or  a  strike.  If  he  succeeds  in  this,  he  is  really 
discovering  the  bargaining  power  of  both  sides  and  bringing 
them  to  the  point  where  they  would  be  if  they  made  an  agree- 
ment without  him.  Where  the  difficulty  is  due  to  the  parties' 
not  having  thoroughly  discussed  the  situation  together,  the 
mediator  is  often  able  to  bring  them  into  joint  conference, 
and,  in  practice,  most  of  the  settlements  have  been  arranged 
through  compromise.  In  other  cases  the  parties  are  unwilling 
to  admit  to  each  other  the  utmost  concession  they  will  make, 
fearing  to  weaken  their  position.  In  such  cases  a  mediator 
whom  both  sides  can  trust  can  render  invaluable  service  as 
an  intermediary.  Occasionally  parties  refuse  to  treat  with 
each  other,  but  will  consent  to  make  each  a  separate  settle- 
ment with  the  mediator.  Finally,  mediators,  through  their 
familiarity  with  methods  for  dealing  with  analogous  difficul- 
ties in  different  trades,  are  sometimes  able  to  suggest  a  so- 
lution. In  all  cases  the  mediator  is  merely  a  confidential 
adviser.  Even  when  he  is  a  state  authority  he  does  not  exer- 
cise any  of  the  compulsory  powers  of  the  state,  and  if  he  even 
endeavors,  by  public  investigations  and  recommendations, 
to  bring  public  opinion  to  bear  upon  the  disputants,  he;  dis- 
qualifies  himself  for  further  mediation. 

Voluntary  arbitration  occurs  when  the  two  parties,  unable 


COLLECTIVE  BARGAINING  127 

to  settle  the  controversy  by  themselves  or  with  the  assistance 
of  a  mediator,  agree  to  submit  the  points  at  issue  to  an  um- 
pire or  arbitrator,  by  whose  decision  they  promise  to  abide. 
The  complete  procedure  of  arbitration  consists  of  a  number  of 
steps:  (i)  The  submission  of  the  dispute  to  the  decision  of  a 
third  party;  (2)  submission  to  an  investigation;  (3)  re- 
fraining from  strike  or  lockout  pending  investigation;  (4) 
drawing  up  an  award;  (5)  enforcement  of  the  award  and  re- 
fraining from  strike  or  lockout  during  its  life.  Arbitration 
remains  strictly  voluntary  even  if  at  every  step  except  the 
first  the  state  uses  its  compulsory  power.  The  essential  thing 
is  that  both  parties  consent  in  advance  to  calling  in  the  powers 
of  government.  Hence  it  is  not  inconsistent  with  the  idea 
of  voluntary  arbitration  for  the  state  to  use  its  power  of  com- 
pelling testimony,  or  even  of  enforcing  an  award,  provided 
that  both  sides  have  previously  agreed  that  this  be  done. 

Under  the  system  of  compulsory  investigation  a  board 
created  by  the  state  summons  witnesses  and  takes  testi- 
mony on  the  initiative  of  one  party  to  the  dispute  without 
the  consent  of  the  other,  or  upon  its  own  initiative  without 
the  consent  of  either.  The  board  is  one  of  investigation  and 
recommendation,  without  legal  power  to  enforce  its  awards. 
Compulsory  investigation  is  sometimes  accompanied  by  pro- 
hibition of  strikes  or  lockouts  pending  the  completion  of  the 
investigation  and  the  publication  of  the  recommendations. 
This  compulsory  postponement  is  the  characteristic  feature 
of  the  Canadian  industrial  disputes  investigation  act  of  1907, 
copied  by  Colorado  in  1915,  designed  to  prevent  sudden 
strikes  or  lockouts.1  But  it  is  not  essential  to  compulsory 
investigation.  The  alternative  is  compulsory  investigation 
without  the  prohibition  of  strikes  and  lockouts,  and  this  is 
provided  for  in  the  laws  of  several  American  states.2  These 
laws  are  generally  thought  to  establish  voluntary  systems  of 
mediation,  but  they  go  beyond  that  point  when  they  take 
testimony  without  the  consent  of  either  side. 

Compulsory  arbitration  consists  in  the  government's  directly 
or  indirectly  compelling  employers  and  employees  to  submit 
their  disputes  to  an  outside  agency  for  decision.  In  a  com- 

1  See  "Coercion  by  Government,"  p.  172. 

2  See  "United  States,"  p.  137. 


128       PRINCIPLES  OF  LABOR  LEGISLATION 

plete  system  of  compulsory  arbitration,  government  coercion  is 
exercised  at  all  five  of  the  steps  previously  mentioned.  Differ- 
ences must  be  submitted  to  arbitration;  witnesses  must  testify 
and  produce  papers ;  the  parties  must  refrain  from  strike  or  lock- 
out during  the  investigation;  the  board  must  reach  a  decision 
and  announce  an  award;  the  parties  must  observe  the  award 
and  refrain  from  strike  or  lockout  during  its  life.  The  penal- 
ties for  violation  are  fine  and  imprisonment,  not,  however, 
imposed  on  a  workman  for  ordinarily  quitting  work  or  on  an 
employer  for  the  ordinary  discharge  of  a  workman,  but  for 
quitting  or  discharging  collectively  or  with  intent  to  obstruct 
any  of  the  steps  essential  to  the  arbitration. 

(2)  Foreign  Countries 

Voluntary  arbitration  attained  its  most  characteristic  de- 
velopment in  England.  Sir  Rupert  Kettle,  one  of  the  founders 
of  the  English  system,  wrote:  "It  is  agreed  that  according  to 
the  spirit  of  our  laws  and  the  freedom  of  our  people,  any 
procedure,  to  be  popular,  must  be  accepted  voluntarily  by 
both  contending  parties,"  *  and  the  whole  history  of  con- 
ciliation and  arbitration  in  England  verifies  his  assertion.  In 
the  early  years  of  the  nineteenth  century  the  effects  of  the 
industrial  revolution,  the  repeal  of  the  conspiracy  laws  in 
1824  permitting  the  organization  of  many  new  unions,  and 
the  panic  of  1828  with  the  ensuing  years  of  depression,  united 
to  bring  about  a  series  of  violent  strikes  and  lockouts.  These 
early  collective  disputes  were  envenomed  by  mistaken  legis- 
lation to  control  the  workmen,  and  the  memory  of  the  period 
embittered  the  relations  of  masters  and  workmen  for  years. 
Gradually,  however,  both  sides  began  to  see  the  futility  of 
these  destructive  methods,  and  the  idea  of  avoidance  or 
peaceful  settlement  of  trade  disputes  by  means  of  joint  boards 
of  employers  and  employees  took  root.  One  of  the  very 
earliest  of  these  boards  was  established  for  the  Macclesfield 
silk  trade  in  1849,  and  was  suggested  by  the  French  industrial 


1  Jos.  D.  Weeks,  "Report  on  the  Practical  Operation  of  Arbitration 
and  Conciliation  in  the  Settlement  of  Differences  between  Employers 
and  Employees  in  England,"  Pennsylvania  Doc.  1878-1879,  Legislative 
Documents,  Vol.  II,  Xo.  8. 


COLLECTIVE  BARGAINING  129 

courts  (conseils  de  prud'hommes).1  It  proved  a  failure.  In 
1856  and  1860  committees  of  the  House  of  Commons  found  the 
men  favorable  to  arbitration,  but  the  employers  opposed  to 
state  intervention.  The  year  1860,  in  which  A.  J.  Mundella 
established  the  first  permanent  board  of  conciliation  and 
arbitration,  marks  the  real  beginning  of  the  movement  for 
conciliation,  and  between  1867  and  1875  countless  boards 
were  established  without  legislation. 

It  was  not  until  1896  that  Parliament  enacted  legislation 
dealing  solely  with  collective  disputes.  The  act  of  1824 2 
applied  only  to  individual  disputes  and  the  act  of  1867  3 
attempted  to  introduce  the  French  industrial  courts.  The 
act  of  1872  4  provided  for  conciliation  boards,  but  was  a  dead 
letter.  In  1893  occurred  the  disastrous  coal  mine  strike  in 
which  finally  the  government  intervened  and  arranged  a 
conciliation  board  similar  to  those  which  had  been  so  widely 
organized  without  government  interference.  Following  this 
came  the  conciliation  act  of  1896.  It  repealed  the  acts  of 
1824,  1867,  and  1872.  It  entrusted  to  the  board  of  trade5 
certain  powers  of  mediation.  The  board  might  (i)  register 
any  private  conciliation  or  arbitration  board  on  application. 
This  conferred  no  additional  powers  on  these  boards.  (2)  If 
the  means  of  conciliation  in  a  district  were  inadequate  the  board 
of  trade  might  appoint  mediators  to  confer  with  the  parties  as 
to  the  formation  of  conciliation  boards.  (3)  In  case  of  an  in- 
dustrial dispute  the  board  of  trade  might  (a)  make  an  inquiry, 
(b)  bring  the  parties  together,  (c)  on  the  application  of  one 
party  appoint  one  or  more  conciliators,  (d)  on  the  application 
of  both  parties  appoint  an  arbitrator.  All  expenses  were  paid 
by  the  government. 

Since  the  passage  of  the  act  two  additions  were  made  to  the 
conciliation  machinery  of  the  board  of  trade  before  the  war, 
neither  of  which  necessitated  further  legislation.  In  1908,  the 
president  of  the  board  sent  a  memorandum  to  the  chambers  of 
commerce  and  employers'  and  workmen's  associations,  stat- 


1  See  "Industrial  Courts,"  p.  86.  2  5  Geo.  4,  C.  96. 

3  30-31  Viet.,  C.  105.  «  35-36  Viet.,  C.  46 

5  At  that  time  similar  to  the  United  States  Departments  of  the  Interior, 
Commerce,  and  Labor.  Its  labor  functions  were  in  1916  transferred  to 
the  newly  created  ministry  of  labor. 

9 


i3o       PRINCIPLES  OF  LABOR  LEGISLATION 

ing  that  the  scale  of  operations  of  the  board  under  the  con- 
ciliation act  required  more  formal  and  permanent  machinery 
and  announcing  the  creation  of  a  standing  court  of  arbitra- 
tion. Three  panels  were  to  be  appointed  by  the  board,  the 
first  comprising  "persons  of  eminence  and  impartiality'^  from 
whom  the  chairman  should  be  chosen,  the  second  empfoyers, 
and  the  third  worlonen.  In  case  of  a  request  for  the  services 
of  the  court,  it  should  be  nominated  by  the  board  of  trade 
from  these  panels,  either  selected  by  them  or  jointly  selected 
by  the  parties,  and  should  consist  of  either  one  or  two  repre- 
sentatives of  each  side,  and  a  chairman,  who  should  have  a 
vote.  In  addition,  technical  assessors  or  experts  might  be 
appointed  by  the  board  to  assist  the  court.  The  members  of 
the  court  would  thus  be  unconnected  with  the  particular  dis- 
pute but  representative  of  the  respective  classes.  In  1909 
the  Forty-second  Trades  Union  Congress  adopted  a  resolution 
that  the  congress  should  elect  the  members  of  the  workmen's 
panel,  to  guard  against  political  influence,  but  the  board  of 
trade  denied  the  request  on  the  ground  that  "public  con- 
fidence in  the  impartiality  of  the  tribunal"  was  better  served 
by  the  existing  arrangement. 

The  court  of  arbitration  proving  a  failure,  an  industrial 
council,  similar  to  that  requested  by  the  trades  union 
congress  in  1909,  was  created  in  1911.  It  consisted  of 
"representatives  of  the  two  great  sides  of  the  industry  of 
the  country."  The  chairman  of  the  industrial  council  is 
called  "chief  industrial  commissioner."  The  reasons  for 
the  creation  of  the  council  were  the  desirability  of  a  na- 
tional representative  body,  and  the  fact  that  the  president 
•  of  the  board  of  trade  is  necessarily  a  politician.  The  council 
,  deals  with  cases  referred  to  it  for  its  opinion  upon  the  facts 
only;  with  cases  referred  to  it  for  inquiry  and  recommenda- 
tions, to  be  made  public,  or  accepted,  if  so  agreed  upon;  with 
cases  referred  by  the  board  of  trade  or  the  government;  and 
with  general  matters  referred  by  the  board  for  a  representa- 
tive opinion. 

Registration  of  conciliation  boards  has  been  far  from  com- 
plete, but  most  unregistered  boards  furnished  the  board  of 
trade  with  annual  returns  regularly  until  the  war.  The  first 
report  of  the  board  of  trade  recorded  one  attempt  to  establish 


COLLECTIVE  BARGAINING  131 

a  board  where  none  existed,  but  the  later  reports  contain  no 
such  information.  Evidently  that  feature  of  the  act  has 
become  a  dead  letter.  In  the  settlement  of  disputes  the  board 
of  trade  has  been  more  successful.  From  1896  to  1913,  696 
cases  were  dealt  with,  of  which  345  involved  a  stoppage  of 
work  and  351  involved  no  stoppage.  About  65  per  cent, 
of  the  total  cases  occurred  in  the  last  six  years  of  the  period 
covered  by  this  report,  the  highest  number  recorded  being 
for  I9I3-1  Reports  during  the  war  were  irregular.  Concilia- 
tion and  arbitration  of  railway  disputes  have  been  under 
an  agreement  secured  through  the  board  of  trade  in  1907. 
This  agreement  broke  down  in  1911  with  a  strike  on  every 
railway  except  one.  It  was  then  revised,  so  that  a  central 
chairman  or  arbitrator  might  be  chosen  from  a  panel  prepared 
by  the  board  of  trade.  On  protest  of  the  unions  this  revised 
agreement  was  to  have  lapsed  in  1914,  and  further  revision 
was  postponed  until  after  the  war. 

Thus,  prior  to  the  war,  legislation  concerning  arbitration 
and  conciliation  in  Great  Britain  was  entirely  permissive  and 
voluntary.  Employers  as  a  class  favored  negotiation  through 
the  voluntary  conciliation  boards,  but  many  of  them  con- 
demned the  interference  of  the  state,  partly  on  the  ground 
that  it  assumed  no  responsibility  for  enforcing  its  award,  and 
partly  on  the  ground  that  the  arbitrator  is  likely  to  have  no 
practical  knowledge  of  the  trade. 

English  trade  unions  have  from  the  first  favored  conciliation 
and  voluntary  arbitration,  but  they  are  opposed  to  compulsory 
arbitration.  Several  efforts  have  been  made  in  the  trades 
union  congress  to  secure  indorsement  of  compulsory  arbitra- 
tion, all  of  which  have  been  defeated  by  large  and  increasing 
majorities.  In  1908  a  resolution  was  introduced  requesting 
Parliament  to  amend  the  conciliation  act  of  1896  so  as  to  give 
the  board  of  trade  powers  of  compulsory  investigation  on 
request  of  either  party,  no  stoppage  of  work  to  take  place 
pending  inquiry  and  report.  It  was  defeated  by  a  large 
majority  at  that  time  and  again  in  1909. 

The  exigencies  of  the  war  eventually  influenced  a  reversal 
of  the  government's  conciliation  policy.  During  the  first 

1  Eleventh  Report  by  the  Board  of  Trade  of  Proceedings  under  Con- 
ciliation Act  of  1896. 


132        PRINCIPLES  OF  LABOR  LEGISLATION 

year  of  the  war,  the  "industrial  truce"  of  August,  1914,  and 
the  "treasury  agreement"  of  March,  1915,  evidenced  the 
patriotic  desire  of  union  leaders  to  avoid  all  stoppages  of  work. 
At  first  a  marked  success  was  attained.  However,  the  increas- 
ing living  costs  and  war  profiteering  renewed  dissatisfaction 
among  the  workers,  and  weakened  the  government's  confi- 
dence, in  the  efficacy  of  existing  arbitration  and  conciliation 
machinery  to  care  for  the  situation.  The  defense  of  the  realm 
act  of  1914,  with  subsequent  amendments,  made  a  criminal 
X  offense  of  instigation  of  a  strike  in  certain  industries.  The 
munitions  of  war  act  of  July,  1915,  made  a  punishable  offense 
of  a  strike  or  lockout,  and  even  of  individual  cessation  of  work 
without  permission.  As  first  promulgated,  the  act  estab- 
lished "controlled  industries,"  in  which  it  was  illegal  to  engage 
in  a  lockout  or  strike  without  first  submitting  grievances  to 
the  proper  tribunals  and  awaiting  the  decision  for  at  least 
one  month  from  date  of  submission  of  grievances.  No  worker 
in  "controlled  industries"  was  allowed  to  quit  his  employer 
without  obtaining  a  dismissal  certificate  under  penalty  of 
enforced  unemployment  for  six  weeks.  "Controlled  indus- 
tries "  being  those  directly  or  indirectly  concerned  in  the  manu- 
facture of  munitions,  it  was  apparent  that  under  pressure  of 
war  the  government  was  brought  to  a  strict  regulation  of 
comparatively  all  phases  of  industrial  disputes. 

The  arbitration  structure  built  up  under  the  munitions  act 
was  distinctly  a  government  affair.  General  and  local  muni- 
tions tribunals  were  provided,  each  to  consist  of  a  chairman 
appointed  by  the  government,  and  if  necessary  from  two  to 
four  "assessors"  selected  from  panels  of  employers  and  em- 
ployees appointed  by  the  government.  Only  the  more  serious 
differences  were  referred  to  the  general  tribunals;  failing  set- 
tlement, they  were  carried  to  the  "committee  of  production," 
which  antedated  the  ministry  of  munitions  by  several  months. 
Later  a  special  tribunal  to  deal  with  women's  wages  was 
authorized.  Later  also  permission  was  granted  a  disputant 
to  appeal  from  a  munitions  tribunal  to  a  high  court  judge. 
K.  Despite  the  munitions  act  strikes  increased,  particularly 
large  strikes.  The  Welsh  coal  strikes  of  July  and  August, 
1915,  and  the  engineering  disputes  of  March  and  April,  1916, 
were  in  effect  protests  against  the  government  policy.  In  the 


COLLECTIVE  BARGAINING  133 

engineering  disputes  the  shop  stewards'  movement  emerged 
as  a  serious  factor,  and  the  government  invoked  the  defense 
of  the  realm  act  to  arrest  the  ringleaders.  In  the  coal  strike 
all  the  existing  agencies  of  arbitration  and  conciliation,  in- 
cluding the  board  of  trade,  intervened  without  success;  the 
dispute  was  not  settled  until  the  prime  minister  had  granted 
labor's  demands.  Miners'  outbreaks  throughout  the  year  led 
to  government  control  of  the  mines  in  December.  The  gov- 
ernment did  not  inflict  on  the  miners  the  penalties  prescribed 
under  the  munitions  of  war  acts.  The  total  number  of  cases 
heard  before  munitions  tribunals  from  their  inception  to 
July  i,  1916,  was  5,354,  involving  16,930  defendants  and 
resulting  in  11,794  convictions.  Of  the  complaints  against 
workpeople  there  were  thirty-four  strike  prosecutions  and  599 
out  of  1,023  defendants  were  convicted.  Approximately 
7  5  per  cent,  of  the  defendants  in  breaches  of  rules  cases  were 
convicted.  No  lockout  complaints  were  recorded  against 
employers,  but  seventy-one  of  the  115  defendants  on  the  charge 
of  illegal  employment  of  workmen  were  convicted.  From 
December,  1915,  to  July,  1916,  3,225  of  the  12,188  ap- 
plications for  dismissal  certificates  were  granted.1  The  min- 
ister of  munitions  reported  in  1916  that  up  to  that  time  only 
about  one-fifth  of  i  per  cent,  of  strikers  were  prosecuted. 
In  November,  1918,  it  was  estimated  that  the  munitions  of 
war  acts  had  at  that  time  operated  during  75  per  cent,  of  the 
war  period,  but  85  per  cent,  of  the  total  time  lost  by  strikes 
during  the  war  occurred  in  that  interval.2 

The  third  year  of  the  war  brought  a  partial  confession  of 
defeat  from  the  government  in  the  enactment  of  the  amend- 
ment of  August,  1917,  to  the  munitions  act.  In  June,  1917, 
the  engineering  strike  had  registered  labor's  strong  disap- 
proval of  the  introduction  of  dilution  of  labor  in  private 
engineering  work.  Strike  leaders  were  arrested  but  later 
released  without  prosecution  after  the  prime  minister  had 
intervened  to  force  a  settlement.  A  commission  of  inquiry 
into  industrial  unrest,  appointed  in  June,  reported  one  month 


1  British  Parliament  Report,  Return  of  Cases  Heard  before  Munitions 
Tribunals  up  to  July  i,  1916,  Cd.  8360. 

2  Milton  Moses,  "Compulsory  Arbitration  in  Great  Britain  during  the 
War,"  Journal  of  Political  Economy,  November,  1918,  pp.  882-900. 


i34       PRINCIPLES  OF  LABOR  LEGISLATION 

later,  urging  especially  repeal  of  the  dismissal-certificate 
regulations  and  reform  of  procedure  under  munitions  tribu- 
nals. In  October,  1917,  the  government  abolished  the  leaving- 
certificate  regulations. 

In  1917  the  government,  through  a  sub-committee  of  the 
ministry  of  reconstruction,  the  "Whitley  committee,"  con- 
sidered means  of  securing  a  "permanent  improvement  in  the 
relations  between  employers  and  workmen."  The  Whitley 
committee  made  five  reports,  proposing  collective  bargaining 
through  a  system  of  national  and  district  industrial  councils 
and  works  committees,  representing  equally  organizations  of 
employers  and  employees.1  In  the  semi -organized  and  un- 
organized industries  the  substitution  or  close  supervision  of 
industrial  councils  by  the  minimum  wage  trade  boards,  under 
the  trade  boards  act  of  1909,  was  urged.  The  exact  deter- 
mination of  the  functions  of  industrial  councils  was  left  to 
the  employers  and  workers  concerned.  It  was  the  opinion 
of  the  Whitley  committee  that  the  councils  should  disclaim 
interference  with  the  existing  machinery  of  conciliation  boards. 
A  suggested  remedy  for  the  lack  of  coordinated  conciliation 
policy  was  the  formation  of  a  standing  arbitration  council  on 
the  lines  of  the  "committee  of  production,"  one  task  of  which 
should  be  the  fullest  publicity  of  the  decisions  of  the  single 
arbitrators.  The  Whitley  committee  went  on  record  as  op- 
posing compulsory  arbitration  and  the  enforcement  of  awards 
or  agreements  by  monetary  penalties ;  for  such  procedure  was 
"not  desired  and  not  effective." 

Objections  to  the  Whitley  report  were  freely  expressed  by 
the  government,  employers,  and  workers.  The  government 
demurred  at  the  trade  boards'  assisting  the  formation  of  in- 
dustrial councils,  the  boards  being  organized  for  an  entirely 
different  purpose.  The  associations  of  employers  indicated 
that  the  Whitley  scheme  would  continue  on  a  large  basis  the 
conflict  between  labor  and  capital,  and  that  it  meant  a  con- 
tinuance of  state  control.  Labor  organizations  feared  that 
the  outcome  would  be  compulsory  arbitration,  disapproved  of 
the  exclusion  of  technical  men  from  the  councils,  and  stated 
that  the  industrial  councils  might  combine  to  raise  wages  and 

1  British  Parliament  Report,  Interim  Report  of  Sub-committee  of  Minis- 
try of  Reconstruction  on  Joint  Industrial  Councils,  March,  1917,  Cd.  8606. 


COLLECTIVE  BARGAINING  I35 

costs  of  production,  placing  the  burden  on  the  consumer. 
Notwithstanding  objections,  the  government  encouraged  the 
scheme.  Beginning  with  the  pottery  and  building  industries, 
thirty-five  joint  industrial  councils  had  been  established  up 
to  May  13,  1919,  and  thirty-six  additional  industries  had| 
made  a  start  toward  the  organization  of  a  council.1 

In  reviewing  the  course  of  arbitration  during  the  period  of 
the  war  in  Great  Britain,  it  is  important  to  bear  in  mind  that 
patriotism  was  an  immeasurable  factor  in  the  attitude  of 
workers  toward  arbitration.  In  the  last  full  year  before  the 
war,  1,497  disputes  were  reported.  Under  the  conciliation 
act  of  1896,  twenty-seven  strikes  or  lockouts  were  settled  by 
conciliation  or  arbitration  in  1913,  and  forty-four  cases  were 
settled  without  stoppage  of  work.2  A  marked  decrease  in  the 
number  of  disputes  was  apparent  at  the  beginning  of  the  war. 
The  total  disputes  for  1915  and  1916  do  not  equal  the  figure 
for  the  single  year  of  1913.  How  much  of  this  decrease  can 
be  laid  to  the  principles  of  compulsory  arbitration  under  the 
munitions  of  war  acts,  and  how  much  to  the  patriotic  impulse 
of  the  workers,  is  difficult  to  determine.  It  is  significant, 
however,  that  the  lowest  point  in  industrial  unrest  during  the 
war  was  the  period  from  August,  1914,  to  August,  1915,  when 
voluntary  cooperation  on  the  part  of  the  workers  was  the 
only  compelling  bond.  Of  further  significance  is  the  sudden 
doubling  of  the  number  of  recorded  trade  disputes  in  1918, 
over  1917. 

Two  conclusions  emerge  from  British  war  experience  with 
compulsory  arbitration.     One  is  that  the  composing  of  indus-  f 
trial  differences  is  the  business  only  of  the  two  parties  to  a 
disptite.     The  mere  existence  of  laws  and  machinery  did  not  ^ 
diminish  tie-ups  in  industry.     The  larger  and  more  important 
the  strike  the  more  complete  was  the  breakdown  of  existing 
machinery,  and  the  more  often  the  government  had  to  inter- 
pose to  settle  differences.     The  acceptance  of  the  Whitley 
report  tacitly  recognizes  that  the  compulsory  introduction  of 


1  United  States  Department  of  Labor,  Monthly  Labor  Review,  Novem- 
ber, 1919,  p.  236. 

2  British  Parliament  Reports,  1914-16,  Vol.  XXXVI,  Report  on  Strikes 
and  Lockouts  and  on  Conciliation  and  Arbitration  Boards,  1913,  p.  98,  Cd. 
7658. 


136       PRINCIPLES  OF  LABOR  LEGISLATION 

third  parties  to  a  dispute  was  "not  desired  and  not  effective." 
The  second  conclusion  is  that  the  most  effective  means  of 
conciliation  is  the  worker's  conviction  that  he  is  a  responsible 
factor  in  the  management  and  control  of  industry.  Some- 
thing of  this  conviction  was  apparent  in  the  railway  strike  of 
September,  1919,  when  a  committee  of  transport  workers 
mediated,  apparently  with  success,  between  the  government 
and  its  striking  railway  employees,  thereby  ending  a  nation- 
wide tie-up.  But  the  Whit  ley  report  and  recent  trade  agree- 
ments are  the  most  tangible  evidence  of  the  increased  respon- 
sibility given  workers  in  controlling  industry.  As  a  means  of 
conciliation  and  as  a  preventive  of  open  disputes,  the  new 
responsibility  seems  a  fruitful  advance. 

Legislation  providing  for  mediation  or  conciliation  and  for 
voluntary  arbitration  is  found  also  in  France,  Germany,  Aus- 
tria, Denmark,  Italy,  Sweden,  Belgium,  Roumania,  Servia, 
Spain,  the  Netherlands,  Switzerland,  and  Argentina.1  The 
French  law  of  1892  applies  to  all  industries  and  makes  jus- 
tices of  the  peace  mediators.  In  Germany  the  law  of  1890, 
revised  in  1901,  provides  that  the  industrial  courts  2  shall  act 
as  boards  of  arbitration. 


(j)   United  States 

a.  State  Legislation.  A  majority  of  the  states  have  legisla- 
tion providing  for  the  settlement  of  industrial  disputes,  and 
Wyoming  has  a  constitutional  provision  to  the  same  effect.3 
Many  of  these  states  have  permanent  boards  called  boards  of 
conciliation  and  arbitration  or  some  similar  title,  with  from 
two  to  six  members,  although  three  is  the  usual  number.  It 


1  See  United  States  Bureau  of  Labor,  Bulletin  No.  60,  September,  1905, 
"Government  Industrial  Arbitration,"  L.  W.  Hatch;    Bulletin  of  the  In- 
ternational Labor  Office,   1906-1918;    United   States  Bureau  of    Labor, 
Bulletin  No.  98,  January,  1912,  "Industrial  Courts,"  H.  L.  Sumner  (for 
Germany). 

2  See  "Industrial  Courts,"  pp.  86-88. 

3  See  United  States  Bureau  of  Labor  Statistics,   Bulletins  No.  148, 
1914,  "Labor   Laws   of  the   United    States";    No.  166,   1915,   "Labor 


more  recent  annual  summaries  in  the  American  Labor  Legislation  Review. 


COLLECTIVE  BARGAINING  137 

is  provided  in  every  state  except  Alabama  that  one  member 
shall  be  a  representative  of  the  employees,  while  all  but  Ala- 
bama and  Connecticut  provide  for  representation  of  employ- 
ers. The  Oklahoma  board  represents  farmers  in  addition. 
Many  states  forbid  that  more  than  two  members  of  the  board 
be  chosen  from  the  same  political  party.  In  other  states  the 
labor  commissioner  acts  as  mediator,  as  in  Idaho,  Indiana, 
and  Maryland.  In  states  having  industrial  commissions,  a 
chief  mediator  is  appointed  along  with  temporary  boards  for 
arbitration. 

In  a  score  or  so  of  states  compulsory  investigation  is  pro-  ^ 
vided  for.1  The  state  board  of  arbitration  must  proceed  to 
make  an  investigation  (i)  on  failure  to  adjust  the  dispute  by 
mediation  or  arbitration,  as  in  Indiana  and  Massachusetts; 
(2)  when  it  is  deemed  advisable  by  the  governor,  as  in  Ala- 
bama and  Nebraska;  or  (3)  simply  when  the  existence  of  the 
dispute  comes  to  the  knowledge  of  the  board,  as  in  Colorado 
and  Vermont.  In  other  states  such  investigation  is  permis- 
sive. The  board  of  arbitration  may  investigate  (i)  when  it 
is  deemed  advisable  by  the  industrial  commission,  as  in  New 
York.  In  Ohio  the  industrial  commission  can  make  an  in- 
vestigation, if  it  deems  necessary,  where  a  strike  exists  or  is 
threatened,  but  if  no  settlement  is  obtained  on  account  of 
the  opposition  of  one  of  the  parties  investigation  is  to  be 
made  only  if  requested  by  the  other  party.  Compulsory  in- 
vestigation may  be  employed  (2)  when  both  parties  refuse 
arbitration  and  the  public  would  suffer  inconvenience,  as  in 
Illinois  and  Oklahoma,  or  simply  where  the  parties  do  not 
agree  to  arbitration,  as  in  New  Hampshire;  (3)  or  generally, 
whenever  a  dispute  occurs,  as  in  Connecticut  and  Minnesota. 

Provision  for  enforcement  of  an  arbitration  award  when-i 
arbitration  has  been  agreed  to  by  representatives  of  both 
sides  is  made  by  about  a  dozen  states.  In  Illinois,  if  the 
court  has  ordered  compliance  with  an  award,  failure  to  obey 
is  punishable  as  contempt,  but  not  by  imprisonment.  In 
Idaho  and  Indiana  the  award  is  filed  with  the  district  court 
clerk,  and  the  judge  can  order  obedience,  violation  being  pun- 

1  Alabama,  Colorado,  Connecticut,  Idaho,  Illinois,  Indiana,  Louisiana, 
Maine,  Maryland,  Massachusetts,  Minnesota,  Missouri,  Montana, 
Nebraska,  New  Hampshire,  New  York,  Ohio,  Oklahoma,  Utah,  Vermont. 


138       PRINCIPLES  OF  LABOR  LEGISLATION 

ishable  as  contempt,  but  imprisonment  may  be  inflicted  only 
for  wilful  disobedience.  In  Missouri  violation  of  a  binding 
award  is  punishable  by  a  fine  or  jail  sentence,  and  in  Ohio 
a  binding  award  may  be  enforced  in  the  county  court  of 
common  pleas  as  if  it  were  a  statutory  award.  In  Nevada, 
Texas,  and  Alaska  the  award  is  filed  with  the  district  court 
clerk,  and  may  be  specifically  enforced  in  equity.  In  Nevada 
appeal  is  made  to  the  supreme  court,  in  Texas  to  the  court  of 
civil  appeals,  and  in  Alaska  to  the  United  States  Circuit  Court 
of  Appeals.  Colorado  is  the  only  state  that  has  copied  (1915) 
the  Canadian  act  forbidding  strikes  or  lockouts  in  certain  in- 
dustries pending  investigation  and  recommendation. 
>  In  about  twenty  states  the  voluntary  agreement  to  arbi- 
trate must  contain  a  promise  to  abstain  from  strike  or  lock- 
out pending  arbitration  proceedings.1  In  Massachusetts  it 
is  the  duty  of  the  parties  to  give  notice  of  impending  stop- 
page of  work.  In  Nevada  and  Alaska  strikes  or  lockouts  dur- 
ing arbitration,  and  in  Alaska  for  three  months  after,  with- 
out thirty  days'  notice,  are  unlawful  and  ground  for  damages. 
b.  Federal  Legislation.  Federal  legislation  on  mediation 
and  arbitration  is  comprised  in  five  acts  concerning  inter- 
state commerce  carriers,  the  act  of  1888,  the  act  Nof  1898  (the 
Erdman  act) ,  the  act  oj.  igY^lthe  Newlands^actyTSectioji  8 
of  the  act  creating  the  Department  of  Labor,  also,  enacted  in 
igii  and  Title  III  of'Hie  transportation  act  by  which  the 
railroads  were~^etufneo!~tD~  private  hands  on  March,  i,  1920, 
at  the  end  of  the  war-time  period  of  government  control  and 
operation.  The  act  of  1888  provided,  on  the  initiative  of 
the  President  of  the  United  States,  for  voluntary  arbitra- 
tion, compulsory  investigation,  and  publication  of  the  de- 
cision. It  also  provided  that  the  President  might  appoint 
'two  commissioners,  who,  with  the  United  States  Commissioner 
of  Labor,  should  investigate  controversies  and  make  to  the 
President  and  to  Congress  a  report,  which  should  be  pub- 
lished. The  investigation  might  be  made  on  application  of 
one  of  the  parties,  of  the  governor  of  the  state  concerned,  or 
on  the  President's  own  motion.  The  act  of  1888  was  on  the 

1  Alabama,  Alaska,  California,  Colorado,  Connecticut,  Indiana,  Iowa, 
Louisiana,  Maine,  Massachusetts,  Montana,  Nebraska,  New  Hampshire, 
Ohio,  Texas,  Utah,  Vermont. 


COLLECTIVE  BARGAINING  139 

statute  books  ten  years  and  in  that  time  no  attempt  is  known 
to  have  been  made  to  apply  the  arbitration  provision.  Only 
once  was  an  investigating  commission  appointed,  that  for 
the  Pullman  strike  at  Chicago  in  1894,  and  on  that  occasion 
the  commission  took  no  action  toward  settling  the  dispute. 

In  1898  the  Erdman  act 1  was  passed,  repealing  the  earlier 
law.  It  applied  to  common  carriers  and  their  officers  and 
employees  except  masters  of  vessels  and  seamen,  engaged  in 
interstate  commerce,  by  railroad  or  by  railroad  and  water, 
the  term  "employees"  including  only  those  actually  engaged 
in  train  operation.  The  act  was  therefore  restricted  to  en- 
gineers, firemen,  conductors,  trainmen,  switchmen,  and  teleg- 
raphers. In  case  of  a  dispute,  the  chairman  of  the  Inter- 
state Commerce  Commission  and  the  Commissioner  of  Labor 
must  on  application  of  either  party  endeavor  by  mediation 
to  adjust  the  difference.  Mediation  was  conditioned  on  re- 
quest by  one  party,  and  on  acceptance  of  the  mediator's  offer 
by  the  other  party.  If  mediation  proved  unsuccessful,  the 
mediators  were  to  urge  arbitration,  and  if  the  parties  agreed 
a  board  of  arbitration  was  formed,  one  member  being  named 
by  each  party  and  the  third  by  these  two.  Failing  their  agree- 
ment on  a  third,  he  was  to  be  named  by  the  commissioners. 
The  submission  was  to  contain  the  following  provisions: 
Pending  arbitration  the  status  existing  immediately  prior  to 
the  dispute  was  not  to  be  changed;  the  award  was  to  be 
filed  with  the  clerk  of  the  United  States  circuit  court  for  the 
district  and  should  be  final  and  conclusive  except  for  error  of 
law;  the  parties  must  be  bound  by  the  award  and  it  might 
be  specifically  enforced  in  equity,  as  far  as  the  powers  of  a 
court  of  equity  permit;  neither  side  was  to  cease  work  on 
account  of  dissatisfaction  with  the  award,  for  three  months, 
without  thirty  days'  notice;  the  award  should  continue  for 
one  year  and  no  new  arbitration  should  be  had  on  the  same 
subject  in  that  time.  The  award  being  filed,  judgment  was 
to  be  entered  accordingly  at  the  end  of  ten  days,  unless  ex- 
ceptions were  filed  for  matter  of  law.  Appeal  might  be  taken 
from  the  decision  of  the  circuit  court  to  the  circuit  court  of  ap- 
peals, whose  determination  should  be  final.  The  arbitrators 


United  States,  Laws  1898,  C.  370. 


i4o       PRINCIPLES  OF  LABOR  LEGISLATION 

were  given  powers  of  compulsory  investigation,  and  strikes  or 
discharge  of  employees  except  for  good  cause  were  made  unlaw- 
ful pending  arbitration  and  for  three  months  after  an  award. 
Violation  subjected  the  offender  to  liability  for  damages. 

During  the  first  eight  years  after  the  enactment  of  the 
Erdman  law  only  one  attempt  was  made  to  invoke  it,1  and 
that  proved  futile;  but  from  1906  until  the  act  was  super- 
~~~~~seded  there  was  no  serious  strike,  actual  or  threatened,  in 
which""  one  of  the  parties  did  not  seek  settlement  under  its 
terms.'  Only  one  failure  to  adjust,  when  mediation  was  ac- 
cepted before  a  strike  began,  is  recorded.  From  1898  to 
1912,  forty-eight  applications  for  mediation  and  arbitration 
were  received,  the  total  mileage  involved  having  been  over 
500,000  and  the  number  of  employees  over  160,000.  Nineteen 
applications  were  made  by  employers,  thirteen  by  employ- 
ees, and  sixteen  by  both  together.  Mediation  was  involved 
in  forty-four  cases,  of  which  eight  were  carried  to  arbitration. 
Four  cases  were  directly  submitted  to  arbitration.  Almost 
invariably,  when  one  side  applied  for  mediation,  the  offer  was 
at  once  accepted  by  the  other,  the  exceptions  having  been 
comparatively  unimportant.  At  the  time  the  Erdman  act 
was  passed  the  arbitration  features  were  regarded  as  para- 
mount, but  in  practice  the  mediation  features  proved  more 
valuable.  Mediation  proceedings  were  made  as  informal  as 
possible.  Conferences  were  held  with  the  two  parties  sep- 
arately, a  joint  meeting  being  held  only  when  complete  settle- 
ment or  agreement  to  arbitrate  was  reached,  and  a  fixed  rule 
was  observed  that  neither  side  should  know  what  concession 
the  other  was  willing  to  make,  until  the  final  agreement.  The 
terms  of  settlement  were  not  published  without  authorization 
of  the  parties.  In  the  twelve  arbitration  cases,  the  first  two 
arbitrators  were  able  to  agree  on  the  third  in  only  three 
instances.  In  no  case  was  there  repudiation  by  either  side 
of  an  arbitration  award,  and  there  is  only  one  instance  of  an 
appeal  to  the  court,  which  proved  most  unsatisfactory  on 
account  of  the  prolonged  litigation  necessary.2 


1 1899- 

2  The  act  of  March  4,  1911,  authorized  the  President  to  designate  any 
member  of  the  Interstate  Commerce  Commission  or  of  the  Court  of 
Commerce  to  take  the  place  of  the  chairman. 


COLLECTIVE  BARGAINING  141 

In  July,  1913,  the  Erdman  act  was  superseded  by  the  New- 
lands  act.1  It  provides  that  a  Commissioner  of  Mediation  and 
Conciliation  be  appointed  by  the  President  with  the  advice 
and  consent  of  the  Senate,  his  term  to  be  seven  years.  The 
President  is  also  to  designate  not  more  than  two  other  gov- 
ernment officials,  appointed  with  the  consent  of  the  Senate, 
to  constitute,  with  the  commissioner,  the  United  States 
Board  of  Mediation  and  Conciliation.  In  the  same  manner 
the  President  must  appoint  an  assistant  commissioner  of 
mediation  and  conciliation,  to  take  the  place  of  the  com- 
missioner if  he  be  absent  or  the  office  vacant,  and  otherwise, 
to  assist  him.  In  case  of  a  controversy  to  which  the  law 
applies  either  party  may  apply  to  the  Board  of  Mediation 
and  Conciliation,  which  must  seek  to  effect  an  amicable  ad- 
justment and  if  unsuccessful  must  urge  arbitration.  If  in- 
terruption of  traffic  is  imminent  and  would  prove  detrimental 
to  the  public,  the  board  may  proffer  its  services  as  mediator. 
In  case  of  a  dispute  over  any  agreement  reached  through  the 
mediation  of  the  board,  either  party  may  apply  to  it  for  an 
opinion.  On  the  failure  of  mediation,  a  board  of  arbitration 
may  be  formed,  composed  of  six  or  three  arbitrators.  Each 
side  chooses  two  members,  or  one  membef,  and  these  choose 
together  the  remaining  two  or  one.  In  case  of  failure  to  agree, 
the  Board  of  Mediation  and  Conciliation  names  the  remain- 
der. Unorganized  employees  may  choose  their  representative 
through  a  committee.  The  agreement  to  arbitrate  must 
comply  with  the  following  requirements:  (i)  It  must  be  in 
writing,  (2)  it  must  state  arbitration  is  had  under  the  act, 
(3)  it  must  specify  whether  there  are  to  be  three  or  six  arbi- 
trators, (4)  it  must  be  signed  by  the  accredited  representatives 
of  both  parties,  (5)  it  must  specify  the  questions  to  be  decided, 
(6)  it  must  state  that  a  majority  award  is  valid,  (7)  it  must 
stipulate  the  maximum  interval  from  the  completion  of  the 
board  to  the  beginning  of  hearings,  (8)  it  must  stipulate  the 
maximum  interval  from  the  beginning  of  the  hearings  to  the 
handing  down  of  the  award,  this  time  to  be  thirty  days  unless 
otherwise  agreed,  (9)  it  must  state  the  date  on  which  the  award 
becomes  effective  and  the  life  thereof,  (10)  it  must  promise 


United  States,  Laws  1913,  C.  6. 


i42       PRINCIPLES  OF  LABOR  LEGISLATION 

faithful  execution  of  the  award,  (n)  it  must  declare  that  the 
award,  testimony,  etc.,  are  to  be  filed  with  the  clerk  of  the 
appropriate  United  States  district  court,  and  (12)  it  may  pro- 
vide that  differences  as  to  interpretation  be  referred  back  to 
the  board,  their  ruling  to  have  the  force  of  the  original  award. 
Upon  consent  of  both  parties  the  board  of  arbitration  is  given 
powers  of  compulsory  investigation.  The  arbitration  agree- 
ment must  be  acknowledged  before -a  notary  public,  the  clerk 
of  a  United  States  district  or  circuit  court,  or  one  of  the  Board 
of  Mediation  and  Conciliation.  The  award  is  to  become 
operative  in  ten  days  after  being  filed,  unless  exception  be 
taken  for  matter  of  law  apparent  upon  the  record.  Decision 
is  rendered  by  the  district  court,  or,  on  appeal,  by  the  circuit 
court  of  appeals.  Parties  may  jointly  ask  to  have  a  board 
of  arbitration  reconvened.  Nothing  in  the  act  may  be  con- 
strued so  as  to  require  service  of  any  employee,  and  no  in- 
junction or  other  legal  process  may  issue  to  compel  perform- 
ance by  any  employee  of  a  contract.1  For  the  four  years 
ending  June  30,  1917,  the  Federal  Board  of  Mediation  and 
Conciliation  functioned  in  seventy-one  controversies,  fourteen 
of  which  were  settled  partly  or  wholly  by  arbitration,  and 
fifty-two  by  mediation.2  One  dispute  was  settled  by  Con- 
gressional action,  the  Adamson  law,  which  meant,  in  effect, 
the  breakdown  of  the  Newlands  act. 

The  outstanding  feature  of  events  leading  up  to  the  Adam- 
son  law  of  September,  1916,  was  the  failure  of  arbitration  by 
existing  agencies.  The  demands  of  the  railway  brotherhoods 
were  met  with  counter-demands  by  the  railway  managers 
and  the  proposal  to  refer  demands  of  both  sides  to  arbitration 
under  the  Newlands  act  or  by  the  Interstate  Commerce  Com- 
mission. The  brotherhoods  refused  arbitration.  Their  ex- 
perience with  settlements  by  third  parties  had  not  been  for- 
tunate, they  asserted.  An  overwhelming  strike  vote  set  the 
stoppage  of  work  for  September  2,  1916.  The  Federal  Board 
of  Mediation  and  Conciliation  exercised  its  prerogative  of 

1 F.  H.  Dixon,  "Public  Regulation  of  Railway  Wages,"  American 
Economic  Review,  Vol.  V,  1915,  pp.  245-269;  United  States  Bureau  of 
Labor,  Bulletin  No.  98,  January,  1912,  "Mediation  and  Arbitration  of 
Railway  Labor  Disputes  in  the  United  States,"  C.  P.  Neill. 

2  Report  of  United  States  Board  of  Mediation  and  Conciliation  under 
Newlands  act,  December,  1917,  p.  3. 


COLLECTIVE  BARGAINING  143 

offering  mediation,  but  a  four-day  conference  failed  to  bring 
agreement.  Facing  a  country-wide  railroad  tie-up,  the  Pres> 
dent  conferred  with  both  sides  to  the  controversy  and  proposed 
(i)  the  concession  of  the  eight-hour  day,  (2)  postponement  of 
the  other  demands  until  a  commission  appointed  to  investi- 
gate the  effect  of  the  eight-hour  4ay  reported.  The  brother- 
hoods agreed,  but  the  managers  delayed.  The  President 
asked  Congress  for  legislation  not  only  to  deal  with  the  exist- 
ing situation,  but  also  to  remedy  the  all  too  apparent  failure 
of  the  Newlands  act.  The  Congressional,  answer  was  the 
Adamson  law,  passed  on  the  day  the  strike  was  to  have  gone 
into  effect.  The  law  embodied  just  the  proposals  made  by 
the  President  to  the  railroad  men  and  employers. 

It  was  plainly  evident  that  the  Federal  Board  of  Mediation 
and  Conciliation  met  defeat  largely  through  the  refusal  of  the 
workers  to  submit  voluntarily  to  arbitration.  This  difficulty 
was  recognized  by  the  President  again  in  December,  1916, 
when  he  asked  Congress  for  compulsory  arbitration  legisla- 
tion. War  legislation  swamped  Congress  before  action  was 
taken  on  his  recommendation. 

The  Newlands  act  again  failed  in  March,  1917.  At  that 
time  the  brotherhoods  renewed  strike  threats,  owing  to  the 
delay  of  the  Supreme  Court  in  deciding  the  constitutionality 
of  the  Adamson  law  1  and  to  the  alleged  evasions  of  the  rail- 
road managers  during  the  Supreme  Court's  delay.  Disre- 
garding the  existing  Federal  Board,  the  President  immediately 
appointed  a  committee  of  the  Council  of  National  Defense  to 
mediate.  Into  the  resulting  agreement  was  written  the  estab- 
lishment of  the  eight-hour  day  and  provision  for  a  commission 
of  eight,  representing  employers  and  employees,  to  decide 
disputes  under  the  agreement.  The  Eight-hour  Commission 
appointed  under  the  Adamson  law  reported  inconclusively 
shortly  after  the  railroads  were  taken  under  control  by  the 
government  for  the  period  of  the  war. 

The  labor  situation  was  immediately  taken  hold  of  when 
the  government  assumed  railroad  control  and  operation  in 
December,  1917,  following  the  breakdown  of  the  roads.  A 
Railway  Wage  Board  was  appointed  in  January  to  make 


1  Finally  upheld  in  Wilson  v.  New,  243  U.  S.  332,  37  Sup.  Ct.  298  (1917). 


144       PRINCIPLES  OF  LABOR  LEGISLATION 

recommendations  to  the  Director-General,  and  a  Division  of 
Labor,  headed  by  a  brotherhood  official,  was  created  in  Feb- 
ruary to  be  the  connecting  link  between  employees  and  officials 
on  one  hand,  and  Railway  Boards  of  Adjustment,  when  later 
instituted,  on  the  other.  The  Railway  Wage  Board's  recom- 
mendations were  accepted  by  the  Director-General  and  orders 
were  issued  providing  for  substantial  increases  in  wages  among 
all  classes  of  employees.  Thereafter  a  permanent  advisory 
board  on  "Railway  Wages  and  Working  Conditions"  was 
created.  Successive  orders  of  the  Director-General  formu- 
lated a  liberal  labor  policy  and  established  machinery  for 
handling  disputes  under  these  orders.  Board  of  Adjustment 
No.  i,  dating  from  March,  1918,  dealt  with  controversies 
affecting  conductors,  engineers,  trainmen,  firemen,  and  en- 
ginemen;  up  to  December  i,  1918,  it  had  docketed  408  cases 
and  made  292  decisions.  Board  of  Adjustment  No.  2,  author- 
ized in  May,  1918,  for  workers  in  mechanical  departments, 
handled  147  cases  and  made  128  decisions  up  to  December, 
1918.  Board  of  Adjustment  No.  3,  with  jurisdiction  over 
telegraphers,  switchmen,  clerks,  and  maintenance-of-way  men, 
had  docketed  only  one  case  in  its  fortnight's  existence  prior 
to  December  i,  ipiS.1  In  all  cases  coming  before  Boards  of 
Adjustment  it  was  obligatory  that  the  usual  attempt  at 
carrying  the  disagreement  to  the  chief  operating  official  of 
the  railroad  be  made  before  calling  on  the  boards.  The 
boards  were  composed  equally  of  representatives  of  the  ad- 
ministration and  employees,  and  their  liberal  decisions  did 
much  to  smooth  out  the  differences  remaining  after  the  break- 
down of  the  Newlands  act  and  the  enactment  of  the  Adamson 
law.  While  the  railroad  employees  officially  voiced  their 
approval  of  the  government  Boards  of  Adjustment,  on  which 
only  the  parties  in  dispute  were  the  arbitrators,  they  have 
consistently  opposed  the  submission  of  disagreements  to  a 
neutral  party  which  is  in  their  opinion  either  biased  or  ignorant. 
The  act  of  March  4,  1913,  creating  a  Department  of  Labor, 
provides  that  the  Secretary  of  Labor  shall  have  power  to  act 
as  mediator  and  to  appoint  commissioners  of  conciliation  in 
labor  disputes,  whenever  in  his  judgment  the  interests  of 


1  Annual  Report  of  Director-General  of  Railroads,  1918,  pp.  JVl6 


COLLECTIVE  BARGAINING  145 

industrial  peace  may  require  it  to  be  done.1  No  appropriation 
was  made  for  the  expenses  of  commissioners  till  October,  1913, 
and  none  for  their  compensation  till  April,  1914.  Until  the 
latter  date,  therefore,  it  was  necessary  to  detail  government 
employees  from  their  regular  work.  An  executive  clerk  was 
appointed  in  July,  1914,  and  the  work  systematized.  In  three 
important  disputes  the  Secretary  of  Labor's  offer  of  mediation 
was  rejected.  In  the  Pere  Marquette  Railroad  shop  strike, 
the  Calumet  copper  miners'  strike,  and  the  Colorado  coal  strike, 
mediation  was  desired  by  the  employees,  but  declined  by  the  em- 
ployers. In  case  mediation  fails,  arbitration  may  be  proposed 
by  the  mediators,  but  they  do  not  themselves  act  as  arbitrators. 
In  the  five  years  1915  to  1919,  inclusive,  the  Secretary  of  Labor 
took  cognizance  of  3,644  cases,  effecting  2,539  adjustments. 
During  1919  alone,  1,780  assignments  of  commissioners  of 
conciliation  resulted  in  1,223  adjustments,  not  including  219 
cases  referred  to  the  National  War  Labor  Board.2 

In  addition  to  the  direct  efforts  of  the  Secretary  of  Labor, 
two  arbitration  boards  were  called  into  existence  to  meet 
exigencies  of  war.  The  President's  Mediation  Commission, 
appointed  in  the  fall  of  1917,  under  the  chairmanship  of  the 
Secretary  of  Labor,  made  settlements  or  investigations  in  (i) 
the  copper  mines  of  Arizona,  (2)  the  California  oil  fields,  (3)  the 
Pacific  coast  telephone  dispute,  (4)  unrest  in  the  lumber  industry 
of  the  Northwest,  (5)  the  packing  industry.  It  should  be  recalled 
that  this  commission  was  a  government  enterprise  beginning  its 
study  generally  after  an  acute  situation  had  arisen.  Its  primary 
intention  was  investigation  rather  than  arbitration ;  but  settle- 
ments were  made  in  all  disputes  except  the  lumber  industry, 
largely  because  existing  means  of  arbitration  had  failed. 

The  National  War  Labor  Board  was  the  outgrowth  of  con- 
ferences between  representatives  of  employers'  and  employees' 
organizations,  the  public,  and  the  government.  Its  existence 
was  not  sanctioned  by  specific  legislation,  but  was  the  result 
of  a  Presidential  proclamation  in  April,  1918.  The  member- 
ship of  the  board  consisted  of  joint  chairmen  representing  the 
public,  selected  respectively  by  employers'  and  employees' 
national  organizations,  and  five  representatives  of  each  of 

1  United  States,  Laws  1912-1913,  C.  141,  Sec.  8. 

2  Secretary  of  Labor,  Seventh  Annual  Report,  1919,  p.  43, 


i46       PRINCIPLES  OF  LABOR  LEGISLATION 

the  two  groups.  Premises  to  govern  its  decisions  were  the 
first  business  of  the  board,  and  the  following  were  arrived  at: 
(i)  No  strikes  or  lockouts  during  the  war,  (2)  settlement  of 
controversies  by  mediation  or  conciliation,  (3)  provision  of 
machinery  for  local  mediation  and  conciliation,  (4)  summons 
of  parties  to  the  controversy  before  the  national  board  in  the 
event  of  failure  of  local  machinery,  (5)  failing  to  reach  decision 
in  the  national  board,  provision  of  an  umpire  appointed  by 
national  board  or  by  the  President  from  a  panel  of  disinter- 
ested persons,  (6)  refusal  to  take  cognizance  of  dispute  where 
other  means  of  settlement  by  agreement  or  federal  law  had 
not  been  invoked,  (7)  right  of  employers  and  employees  to 
organize  without  discrimination,  (8)  right  of  collective  bar- 
gaining. Acting  on  these  principles  as  an  official  expression 
of  the  government's  war  labor  policy,  the  board  received  1,245 
controversies  up  to  May  3 1 ,  1 9 1 9 .  In  46  2  of  these  cases  awards 
or  finds  were  made,  391  were  dismissed  because  of  voluntary 
settlement,  lack  of  jurisdiction,  or  for  other  reasons,  315  were 
referred  to  other  agencies  having  primary  jurisdiction,  fifty- 
three,  involving  only  three  distinct  disputes,  remained  on  the 
docket  because  the  board  was  unable  to  agree,  twenty-three 
were  pending,  and  one  was  suspended.1 

y~  In  the  enforcement  of  awards  the  National  War  Labor 
Board  had  no  specific  legal  sanction  or  penalty;  appeal  was 
usually  made  to  patriotic  motives.  There  were  but  three 
instances  of  resistance  to  the  board's  awards.  In  one  case 
the  Western  Union  Telegraph  Company  discriminated  against 
union  employees  and  refused  to  abide  by  the  board's  decision 
in  favor  of  the  men.  The  President  was  rebuffed  in  his  appeal 
for  patriotic  acquiescence,  but  was  sustained  by  Congress  in 
taking  over  the  telegraph  lines  for  the  government.  Later,  in 
September,  1918,  the  organized  workers  at  Bridgeport,  Conn., 
struck  against  an  award  of  the  board,  but  on  the  President's 
threat  of  unemployment  enforced  by  governmental  agencies, 
they  returned  to  work.  Finally,  the  Smith  &  Wesson  Com- 
pany in  Springfield,  Mass.,  manufacturing  firearms,  refused 
to  abide  by  the  board's  warning  not  to  discriminate  against 
union  employees,  and  the  President  retaliated  by  ordering  the 
War  Department  to  take  over  the  factory. 

Secretary  of  Labor,  Seventh  Annual  Report,  1919,  pp.  112-113. 


COLLECTIVE  BARGAINING  147 

The  policy  of  having  disputes  settled  by  representatives  of 
the  two  parties  most  directly  at  interest,  the  workers  and  the 
employers,  was  in  the  main  adopted  in  the  transportation 
act  of  I920.1  The  act  declares  it  the  duty  of  the  roads  and 
of  their  employees  to  "exert  every  reasonable  effort  and  adopt 
every  available  means  to  avoid  any  interruption  to  the  opera- 
tion of  any  carrier"  growing  out  of  any  dispute.  In  case  a 
dispute  arises,  it  is  to  be  decided  if  possible  in  conference 
between  representatives  of  both  sides.  Such  disputes  involv- 
ing only  grievances,  rules,  or  working  conditions,  as  cannot 
be  settled  in  this  way,  are  to  go  before  "railroad  boards  of 
labor  adjustment,"  which  may  be  established  by  agreement 
between  any  road  or  group  of  roads  and  the  employees.  Ex- 
cept that  the  boards  are  to  contain  representatives  of  the 
organized  workers,  their  size  and  composition  are  left  entirely 
to  the  parties  concerned.  Matters  may  come  before  the 
adjustment  boards  either  upon  application  by  the  road  or 
the  organized  workers  affected,  upon  written  petition  of  a 
hundred  unorganized  employees,  upon  the  board's  own  mo- 
tion, or  upon  the  request  of  the  "Railroad  Labor  Board." 
This  Railroad  Labor  Board  is  set  up  by  the  act  as  the  final 
tribunal  for  the  settlement  of  railroad  labor  disputes.  It  is 
composed  of  nine  members,  appointed  by  the  President  with 
the  consent  of  the  Senate,  to  represent  in  equal  proportion 
the  workers,  the  employers,  and  the  public.  The  three  repre- 
sentatives of  the  first  two  groups  are  to  be  selected  from  a 
list  of  not  less  than  six  nominees  submitted  by  the  two  groups 
themselves.  Members  of  the  board  may  not,  during  their 
five-year  term  of  office,  be  active  members  or  officers  of  labor 
organizations  or  hold  stocks  or  bonds  of  any  carrier.  Dis- 
putes come  before  the  Railroad  Labor  Board  either  upon 
failure  of  the  adjustment  board,  or  directly.  All  of  its  de- 
cisions must  be  by  majority  vote,  but  on  matters  taken  up 
directly  one  of  the  members  representing  the  public  must 
concur  in  the  decision.  The  Railroad  Labor  Board  also  has 
power  to  suspend  any  decision  on  wages  made  by  the  initial 
conference,  if  it  is  of  the  opinion  that  the  decision  "involves 
such  an  increase  in  wages  or  salaries  as  will  be  likely  to 


1  United  States,  Transportation  act,  approved  February  29,  1920. 


148       PRINCIPLES  OF  LABOR  LEGISLATION 

necessitate  a  substantial  readjustment  of  the  rates  of  any 
carrier."  In  such  cases  the  Railroad  Labor  Board  must, 
after  a  hearing,  affirm  or  modify  the  suspended  decision.  As 
principles  for  settling  standards  of  wages  and  working  con- 
ditions, consideration  must  be  given  to  wage  scales  in  other 
industries,  cost  of  living,  hazards  of  the  employment,  training 
and  skill  required,  degree  of  responsibility,  character  and 
regularity  of  the  employment,  and  inequalities  resulting  from 
previous  adjustments.  Hearings  on  alleged  violations  of  de- 
cisions are  to  be  held  by  the  Railroad  Labor  Board,  which 
must  publish  its  decision.  The  Board  of  Mediation  and  Con- 
ciliation created  in  1913  is  still  left  in  operation,  but  its  juris- 
diction does  not  extend  to  any  dispute  under  investigation 
by  the  boards  established  under  the  new  act. 

A  semi-official  instance  of  arbitration  occurred  in  the  case 
of  the  great  anthracite  coal  strike  in  Pennsylvania  in  1902. 
In  this  case  the  government  appointed  an  arbitration  com- 
mission on  the  request  of  the  parties  without  any  special 
authority  in  law.1  The  miners  wanted  an  agreement,  the 
operators  felt  that  it  would  not  be  binding  and  that  the  union 
obstructed  discipline.  In  October,  five  months  after  the  be- 
ginning of  the  strike,  President  Roosevelt  appointed  the  An- 
thracite Coal  Strike  Commission.  The  men  returned  to  work 
and  the  commission  began  its  inquiry.  It  took  the  testi- 
mony of  558  witnesses.  The  losses  of  the  strike  were  esti- 
mated at  $25,000,000  in  wages,  $1,800,000  in  relief  funds, 
$46,100,000  to  the  operators,  and  $28,000,000  in  freight  re- 
ceipts to  transportation  companies.  The  commission  found 
the  underlying  cause  of  the  strike  to  be  the  issue  of  recognition 
of  the  union.  The  award  stated  that  the  commission  would 
recommend  recognition  of  the  union,  were  the  anthracite 
unions  separated  from  the  bituminous  unions,  but  that  diffi- 
culties should  be  referred  to  a  permanent  joint  committee  of 
miners'  and  operators'  representatives,  with  an  umpire  ap- 
pointed by  the  federal  court,  and  that  the  life  of  the  award 
should  be  till  March,  1906.  The  commission  further  recom- 
mended a  system  of  compulsory  investigation.  The  agree- 

1  United  States  Bureau  of  Labor,  Bulletin  No.  43,  November,  1902, 
"Report  to  the  President  by  the  Commissioner  of  Labor";  Bulletin  No. 
46,  May,  1903,  "Report  of  the  Anthracite  Coal  Strike  Commission." 


COLLECTIVE  BARGAINING  149 

ment  has  been  renewed,  with  modifications,  and  was  still  in 
force  at  the  beginning  of  1920. 

Much  the  best  results  of  state  or  government  intervention 
have  been  achieved  through  mediation.  The  government's 
war  policy  was  expressly  to  resort  to  voluntary  arbitration 
only  after  every  effort  at  mediation  had  been  made.  The 
Railroad  Administration,  in  particular,  avoided  arbitration, 
with  satisfactory  results.  Only  in  extreme  cases  did  the 
government  use  its  sweeping  war  powers  to  enforce  decisions, 
and  experience  has  shown  that -both  employers  and  employees 
generally  have  been  moderately  well  satisfied  with  voluntary 
procedure.  Public  investigation,  up  to  the  last  few  years,  has 
seldom  been  used.  On  the  whole,  a  good  deal  has  been  ac- 
complished in  the  promotion  of  industrial  peace,  the  chief 
obstacle  in  the  way  of  success  having  been  a  lack  of  confidence 
on  the  part  of  the  disputants  in  the  impartiality  or  ability  of 
the  state  or  government  officials.  The  powers  of  compulsory 
investigation  and  publication  of  the  recommendations  with- 
out consent  of  the  parties,  adopted  in  nearly  half  the  American 
laws,  have  seldom  been  resorted  to. 

Legislation  is  still  needed  to  extend  the  field  of  federal 
mediation,  notably  in  reference  to  the  railroad  situation,  but 
also  with  regard  to  disputes  involving  other  agencies  of  inter- 
state commerce  and  disputes  so  comprehensive  and  vital  in 
extent  that  existing  state  agencies  are  unable  to  meet  the 
situation.  The  Secretary  of  Labor  is  empowered  to  intervene 
in  such  cases,  but  his  intervention  brings  in  the  political  and 
trade  union  partisanship  which  is  objectionable  to  the  usual 
parties  to  a  dispute.  Cooperation  between  federal  and  state 
agencies  for  the  settlement  of  industrial  disputes  is  also  needed. 
There  is  a  strong  tendency  among  certain  employers  and 
political  groups  toward  the  Canadian  plan  of  compulsory  in- 
vestigation. But  workers  generally  will  not  tolerate  any 
abridgment  of  their  right  to  strike. 

3.  COERCION  BY  GOVERNMENT 
(i)  Restrictions  on  Strikes  and  Lockouts 

The  preceding  section  has  covered  the  mediatory  measures 
which  governments  have  adopted  to  diminish  strikes  and 


i5o       PRINCIPLES  OF  LABOR  LEGISLATION 

lockouts.  Their  essence,  whether  it  be  mediation,  conciliation, 
or  arbitration,  is  the  voluntary  acquiescence  and  participation 
of  both  the  employer  and  the  employees  acting  collectively. 
As  long  as  arbitration  is  voluntary  the  bargaining  power  of 
neither  party  is  affected. 

From  the  point  of  view  of  legislation  the  strike  and  lockout 
have  two  aspects.  On  one  hand  they  create  injury  to  the 
public.  On  the  other  hand,  they  are  a  part  of  the  bargaining 
process  by  which  wages  are  determined.  To  the  public  the 
effects  of  the  strike  and  lockout  are  similar.  Both  cause  sud- 
den stoppage  of  trade,  failure  to  pay  debts,  expense  of  public 
relief,  and  sometimes  disorder  and  famine  prices.  Hence 
legislation,  springing  simply  from  the  needs  of  the  public, 
treats  the  strike  or  the  lockout  as  a  public  nuisance. 

But  as  methods  of  bargaining  these  two  are  not  equivalent. 
To  the  employer  the  right  to  lock  out  is  comparatively  unim- 
portant. He  may  use  it  to  discipline  an  unruly  set  of  em- 
ployees, to  discourage  unionization  in  his  factory,  or  to  "get 
the  start"  of  his  men.  But  in  the  usual  bargaining  he  has  no 
need  of  it.  He  can  keep  his  factory  gates  open  even  though, 
at  the  same  time,  he  may  be  reducing  wages  or  refusing  de- 
mands for  higher  wages.  He  is  nojt  forced  to  lock  out  and  he 
can  force  his  employees  to  strike  or  submit.  Legislation  which 
prohibits  or  restricts  the  lockout  does  not  greatly  weaken  the 
bargaining  power  of  the  employer. 

But  to  the  employees  there  can  be  no  collective  bargaining 
without  the  right  to  strike.  For  a  strike  is  nothing  but  the 
collective  refusal  of  the  terms  of  the  employer.  Legislation 
which  restricts  or  prohibits  strikes,  restricts  or  prohibits  col- 
lective bargaining  itself.  It  leaves  the  employee  a  helpless 
individual  in  the  face  of  an  aggregation  of  capital,  unless  the 
same  law  which  restricts  or  prohibits  the  collective  bargaining 
provides  an  adequate  substitute  in  its  place. 

Consequently,  as  affecting  the  collective  bargain,  there  are 
two  essentials  to  an  adequate  measure  of  compulsory  arbitra- 
tion. First,  the  power  to  restrict  strikes  and  lockouts.  This 
is  directed  primarily  against  the  employees.  Second,  the 
power  to  enforce  awards  as  to  wages  and  conditions  of  labor 
while  the  plant  is  running.  This  is  directed  primarily  against 
the  employer.  There  necessarily  goes  with  these  two  powers 


COLLECTIVE  BARGAINING  151 

the  power  of  compulsory  investigation  where  one  of  the  parties 
is  unwilling  to  submit  to  arbitration,  but  such  power  is  but 
a  means  to  an  end  of  obtaining  a  just  award  and  is  as  essential 
to  a  system  of  public  information,  like  the  Canadian  industrial 
disputes  investigation  act  of  1907,  as  to  a  system  of  coercion, 
like  the  Australian  arbitration  acts.  It  is  the  joint  presence 
of  these  two  essentials  which  makes  the  difference  between 
compulsory  arbitration  and  minimum  wage  boards  on  one 
hand,  and  compulsory  arbitration  and  the  Canadian  dis- 
putes investigation  act  on  the  other  hand.  The  wage  board 
enforces  a  minimum  award,  but  does  not  restrict  the 
right  to  strike.1  The  Canadian  act  restricts  the  right  to 
strike  without  notice,  but  grants  no  power  to  enforce  an 
award. 

The  degree  of  restriction  upon  the  strike,  as  expressed 
in  different  laws,  varies  widely.  Carried  out  in  administra- 
tion it  varies  still  more  widely.  In  the  Canadian  disputes  act 
and  in  the  Colorado  industrial  commission  act  of  1915,  only 
strikes  without  notice  and  hearing  are  unlawful.  The  same  is 
true  in  the  case  of  "unregistered"  unions  in  New  Zealand. 
On  the  other  hand,  all  strikes  by  "registered"  unions  in  that 
colony  and  strikes  by  anybody  in  most  of  the  Australian 
states  are  unlawful.  But  because  of  administrative  weak- 
ness, as  will  be  shown,  the  actual  coercion  is  very  much  less 
than  is  indicated  on  the  face  of  these  laws. 

Compulsory  awards  were  first  introduced  in  North  America 
by  the  Kansas  "court  of  industrial  relations"  law  of  i92o.2 
The  acts  of  a  dozen  other  states  3  and  the  Canadian  industrial 
disputes  investigation  act  contain  provisions  for  enforcing 
awards  which  have  first  been  voluntarily  accepted  by  both 
parties.  New  Zealand  goes  a  step  further  than  this  toward 
coercion,  for  there  it  is  optional  for  either  employers  or  em- 
ployees to  register,  but  one  of  the  parties  registered  can  ap- 
peal for  an  award  which  will  be  enforced  against  both  the 
parties.  Finally,  in  Australia,  and  in  Kansas  under  the  law 
just  mentioned,  there  is  left  no  option  to  either  employers  or 
unions. 


1  Except  under  special  circumstances. 

2  See  p.   173. 

3  See  "Mediation  by  Government,"  p.  137. 


1 52       PRINCIPLES  OF  LABOR  LEGISLATION 

(2)  Development  of  Coercive  Intervention 

a.  England.  This  development  toward  restriction  of  the 
right  to  strike  and  the  substitution  of  wage  awards  is  some- 
times treated  as  a  step  backward.  This  is  entirely  too  simple 
a  view.  It  is  true  that  the  freedom  of  the  bargain  has  de- 
veloped from  a  former  time  of  government  coercion  and  now 
shows  tendencies  to  go  back  under  government  coercion  again. 
But  the  modern  coercion  is  different  from  the  old  coercion, 
since  the  modern  government  derives  its  authority  from  a 
broader  range  of  classes  than  those  which  controlled  the  older 
governments.  In  the  England  of  the  middle  ages,  at  first, 
the  lord  of  the  manor  and  the  town  officials  determined  the 
wages.  The  national  catastrophe  of  the  Black  Death  in  the 
fourteenth  century  caused  Parliament  to  fix  wages  by  law  in 
certain  occupations.  This  proved  unwieldy  and  Parliament 
gave  the  right  to  declare  wages  to  the  local  justices  of  the 
peace.  This  system  was  codified  in  the  Elizabethan  statute 
of  apprentices,  1562.  England  therefore  was  under  a  local 
wage  board  system,  but  on  this  local  wage  board  was  no 
representative  of  labor.  The  wage  determined  was  not  the 
minimum  wage,  as  at  present,  above  which  the  employee  cari 
bargain  and  below  which  the  employer  cannot  bargain.  It 
was  a  fixed  wage.  It  was  as  unlawful  for  the  employee  to 
demand  more  as  for  the  employer  to  offer  less.  It  thus  gave 
no  freedom  to  either  party  for  either  individual  or  collective 
bargaining. 

In  the  seventeenth  and  eighteenth  centuries  England  ceased 
to  be  an  aggregation  of  local  markets  and  became  a  national 
market.  A  local  system  of  wage  determination  became  ab- 
surd and  fell  into  disuse.  In  spite  of  the  protests  of  the  in- 
cipient trade  unions  of  the  time,  the  employer  was  freed  from 
the  compulsory  wage  and  obtained  the  right  to  bargain  with 
the  individual  employee.  On  the  other  hand,  at  about  the 
same  time,  the  right  of  collective  bargaining  by  employees  was 
denied  both  by  statutes  and  by  judicial  decisions.  In  1720 
Parliament  began  a  series  of  acts  against  combinations  of 
labor.  In  1721  the  court  brought  within  the  common-law 
doctrine  of  conspiracy  a  combination  of  laborers  to  raise  their 
wages.  This  policy  reached  its  culmination  in  the  con- 


COLLECTIVE  BARGAINING  153 

spiracy  acts  of  1799  and  iSoo.1  But,  beginning  in  1824,  when 
a  strike  to  raise  wages  was  partly  legalized,  the  nineteenth 
century  showed  a  continuous  development  in  England  of  the 
right  of  collective  bargaining.  This  formal  right  has  been 
backed  by  unions  which  are  both  strong  and  reliable.  The 
public  has  been  saved  much  of  the  nuisance  of  the  strike  and 
lockout  by  a  long  series  of  voluntary  trade  agreements  Yet, 
recently  in  several  of  the  sweated  industries  and  in  coal  min- 
ing 2  the  government  has  formed  minimum  wage  boards  which 
both  protect  the  workers  against  the  individual  bargain  of  the 
employer  and  give  a  basis  for  collective  action  by  the  em- 
ployees. Thus  the  twentieth  century  opens  with  a  policy 
exactly  opposite  to  that  of  the  eighteenth  century.  Collec- 
tive bargaining  is  free,  but  individual  bargaining,  when  likely 
to  be  oppressive  to  employees,  is  restricted. 

b.  Australasia.  In  Australasia,3  Canada,  .and  the  United 
States  there  was  much  the  same  development  as  in  England 
up  to  about  1890.  Since  1890,  however,  there  has  been  in 
Australasia  a  complete  revolution  in  policy.  In  1894  New 
Zealand  passed  its  compulsory  arbitration  act.  The  next  state 
to  adopt  compulsory  arbitration  was  New  South  Wales  in 
1901.  It  was  followed  by  Western  Australia  in  1902,  by  the 
Commonwealth  itself  in  1904,  and  by  South  Australia  and 
Queensland  in  1912.  Meanwhile  Victoria  and  Tasmania  had 
adopted  compulsory  wage  boards.  In  twenty  years  all  ofv- 
Australasia  has  adopted  laws  which  are  coercive  either  of 
the  individual  bargain,  the  collective  bargain,  or  both.  Even 

1  See  Bryan,  Law  of  Conspiracy,  1909,  for  a  general  discussion  of  the 
subject. 

2  See  "The  Minimum  Wage,"  pp.  191,  192. 

3  The  material  used  in  determining  facts  and  conclusions  regarding 
Australasia  is  mostly  of  a  controversial  nature.     The  wages  boards  of 
Australia  have  had  a  recent  thorough  and  impartial  treatment  by  Dr. 
Hammond  ("  Wages  Boards  in  Australia,"  Quarterly  Journal  of  Economics, 
Vol.  XXIX,   1914,  pp.  98-148,  326-361,  563-630).     For  the  rest,  the 
books  on  the  subject  are  either  too  old  (books  age  rapidly  in  regard  to 
the  Australasian  labor  situation)  or  too  controversial,  or  if  government 
publications,  too  colorless.     The  parliamentary  debates  which  are  given 
in  full  for  the  Commonwealth,  Victoria,  and  New  Zealand  have  been 
mainly  relied  upon.     Three  Australian  labor  papers  have  been  consulted, 
but  the  anti-labor  papers  have  been  accessible  only  in  the  forms  of 
clippings  or  quotations,  of  which  the  most  valuable  is  the  report  of  the 
American   Trade   Commission  of  the   National  Association   of   Manu- 
facturers (see  Bibliography), 


i54       PRINCIPLES  OF  LABOR  LEGISLATION 

in  the  United  States  and  Canada,  through  the  Canadian  act 
of  1907,  the  Colorado  act  of  1915,  and  the  Kansas  law  of  1920, 
there  has  been  reintroduced  coercion  against  strikes  or  lock- 
outs in  certain  industries  affected  with  a  public  interest. 

No  single  reason  explains  this  new  development.  It  rests 
in  part  on  the  comparative  failure  of  collective  bargaining  to 
bring  about  collective  agreements,  in  part  on  the  broader 
democratic  source  from  which  modern  governments  derive 
their  authority  and  which  makes  their  coercion  less  oppressive 
to  workmen,  in  part  on  the  growing  importance  of  industries 
affected  with  a  public  interest,  and  latterly,  in  part,  on  the  de- 
mand of  employers  for  protection  against  more  powerful  unions. 

The  evolution  of  coercion  in  Australasia  to  an  extent  far 
greater  than  that  of  the  United  States  is  a  normal  result  of 
a  development,  economic,  social^and  political,  sharply  in  con- 
trast  with  ouTown.  The  public  has  been  itself  the  largest  em- 
ployer of  labor  through  its  government  railroads  and  other 
public  utilities.  Private  employers  of  labor,  particularly  indus- 
trial employers,  have"  been  naej^|_small_carjital,  employing  few 
hands  as  compared  with  those  in  the  United  States.  Appar- 
ently the  capitalistic  power  which  the  Australasian  labor 
leaders  attack  most  bitterly  is  that  of  the  shipper  and  the 
merchant.  The  position  of  the  employer  is  somewhat  similar 
to  that  in  the  United  States  in  1830.  But  the  position  of  the 
employee  has  been  sharply  different.  In  1830  in  the  United 
States  the  workingmen  were  striking  for  a  ten-hour  day.  In 
Australasia,  before  compulsory  arbitration  had  come  into 
existence,  the  eight-hour  day  had  become  the  general  rule. 
But  in  America  there  is  no  standard.  The  hours  range  from 
eight  to  twelve,  the  'days  from  five -and  a  half  to  seven  a  week, 
the  pay  from  $2  to  $6  a  day  in  the  same  locality.  The  brick- 
layer gets  from  two  to  even  four  times  as  much  as  the  hod- 
carrier,  measured  by  the  hour,  and  an  even  higher  ratio  in 
comparison  with  ordinary  laborers.1  In  Australasia  there  is 
no  such  difference.  The  bricklayer  gets  but  20  per  cent,  to 
50  per  cent,  more  than  the  building  laborer.2  In  the  United 

1  Great  Britain,  Board  of  Trade,  Report  on  Cost  of  Living  in  American 
Towns,  1911,  pp.  65,  107. 

2  Australia,  Commonwealth  Bureau  of  Census  and  Statistics,  Labor 
and  Industrial  Branch,  Report,  No.  2,  1913,  "Trade  Unionism,  Unemploy- 
ment, Wages,  Prices,  and  Cost  of  Living  in  Australia,"  p.  36. 


COLLECTIVE  BARGAINING  155 

States  labor  is  divided  both  politically  and  industrially  by  the 
negro  and  the  immigrant.  During  the  last  twenty  years  the  bulk 
of  our  immigration  has  been  from  people  receiving  relatively 
low  wages  even  for  Europe.  The  immigration  into  Australasia 
has  been  comparatively  light.  It  has  almost  all  come  from 
the  British  Isles,  from  a  people  receiving  the  highest  wages 
in  Europe.  There  have  been  no  difficulties  presented  by  con- 
flicting races  and  different  languages.  There  has  been  no 
large  body  of  disfranchised  or  unnaturalized  laborers.  The 
election  laws  have  been  continuously  more  favorable  to  labor 
than  those  of  the  United  States.  In  New  South  Wales,  for 
example,  an  immigrant  from  Great  Britain  can  vote  in  one 
year,  from  any  of  the  Australian  states  in  three  months.  Pro- 
vision is  made  for  absent  voting.  The  entire  labor  force,  not 
merely  the  skilled  workmen,  as  in  some  of  our  Eastern  and 
Southern  states,  can  be  mobilized  at  the  polls. 

The  power  of  labor  at  the  polls  was  first  shown  during 
the  very  years  when  labor  proved  impotent  in  collective  bar- 
gaining. From  1890  to  1893  labor  was  defeated  in  four  dis- 
astrous strikes.  In  1890  a  maritime  strike  paralyzed  the 
shipping  of  Australia  and  New  Zealand.  To  an  exporting 
people,  like  the  Australasians,  a  maritime  strike  ties  up  busi- 
ness as  completely  as  a  railroad  strike  in  the  United  States. 
In  the  midst  of  the  strike  the  unions  asked  for  arbitration. 
The  employers  refused  and  the  unions  were  beaten.  The  next 
year  there  was  a  sheep-shearers'  strike,  mainly  for  the  right 
of  collective  bargaining.  There  was  great  public  disorder. 
The  unions  were  defeated.  In  1892  the  miners  at  Broken 
Hill,  New  South  Wales,  before  they  struck,  asked  for  volun- 
tary arbitration.  This  the  employers  refused  and  in  the 
strike  that  followed  the  men  were  defeated.  Another  tur- 
bulent and  disastrous  sheep-shearers'  strike  marked  the  year 
that  followed.  During  those  same  four  years  the  number  of 
parliamentary  seats  held  by  labor  greatly  increased. 

These  were  the  events  preceding  1894,  when  the  first  com- 
pulsory arbitration  act  was  passed  in  New  Zealand.  Strikes 
had  meant  loss  to  the  public  and  defeat  to  the  employees. 
Voluntary  arbitration  had  been  refused  by  the  employers. 
With  a  progressive  Liberal  Party  dominant  in  New  Zealand, 
with  the  Labor  Party  developing  in  Australia,  the  unions 


156       PRINCIPLES  OF  LABOR  LEGISLATION 

turned  to  government  for  coercive  assistance  in  wage  deter- 
mination. 

Unlike  Australia,  New  Zealand  has  never  had  a  large  Labor 
Party,  but  a  month  after  the  defeat  of  the  maritime  strike  a 
progressive  Liberal  Party  came  into  power  to  hold  office  for 
the  next  twenty  years.  It  was  under  this  party  that  the  first 
compulsory  arbitration  act  was  passed,  as  well  as  all  the  suc- 
ceeding acts  and  amendments  up  to  the  amendment  of  1913. 
The  first  act  had  the  support  of  the  representatives  of  labor, 
but  was  opposed  by  the  employers.  New  South  Wales  had 
passed  a  law  for  voluntary  arbitration  in  1892  and,  in  thQ  next 
large  strike  which  followed,  the  employers  had  refused  to 
accept  arbitration  under  the  act.  So  at  that  period  there 
was  little  to  show  that  voluntary  arbitration  laws  were  of 
any  use.  It  seemed  that  if  strikes  were  to  be  diminished  at 
all  it  must  be  by  compulsion. 

The  New  Zealand  act  went  into  effect  in  1895.  Thence 
until  1906  there  was  a  general  period  of  prosperity,  and  what 
would  probably  have  been  a  series  of  victorious  strikes  on  a 
rising  market  became  a  no  less  victorious  series  of  awards  of 
the  court  of  compulsory  arbitration.  Strikes  were  few  and 
insignificant.  With  1907  the  prolonged  period  of  prosperity 
ended.  Thereafter  the  awards  gave  little  or  no  increases  of 
wages.  There  was  a  series  of  illegal  strikes  and  a  readjust- 
ment of  the  law  in  1908.  In  1913  and  1914  the  law  was  put 
to  a  new  trial.  There  was  a  spread  of  socialism  and  syndical- 
ism among  the  employees.  A  waterside  strike  occurred,  ac- 
companied by  many  sympathetic  strikes.  The  government's 
answer  was  to  limit  to  narrower  grounds  the  right  to  strike. 
Compulsory  arbitration  has  now  had  twenty  years  of  trial 
under  conditions  of  ease  and  under  conditions  of  stress.  It 
started  with  a  law  which  was  just  over  the  border-line  of 
voluntary  arbitration.  With  successive  periods  of  strain  the 
act  has  been  strengthened  until  now  it  is  clearly  coercive. 
X  The  act  as  passed  in  1894  provided  for  district  boards  of 
conciliation,1  and  one  court  of  arbitration.  The  boards  of 
conciliation  were  composed  of  an  equal  number  of  representa- 
tives of  employees  and  employers.  The  representatives  of 


1  Seven  were  appointed. 


COLLECTIVE  BARGAINING  157 

both  employers  and  employees  were  nominated  by  the  regis- 
tered unions  of  employers  and  employees  within  the  district. 
The  court  of  arbitration  consisted  of  one  supreme  court  judge, 
assisted  by  one  member  nominated  by  the  registered  unions 
of  employers  and  one  member  nominated  by  the  registered 
unions  of  employees.  Neither  the  boards  of  conciliation  nor 
the  court  of  arbitration  was  authorized  to  receive  any  de- 
mands except  from  unions  registered  under  the  act.  A  de- 
mand received  from  a  registered  union,  either  of  employers 
or  of  employees,  must  first  pass  before  a  board  of  conciliation, 
but  if  the  award  was  unsatisfactory  to  either  party  an  appeal 
could  be  taken  to  the  court  of  arbitration,  whose  award  was 
binding.  During  the  hearings  and  until  the  expiration  of  the 
award  it  was  unlawful  to  strike  or  lock  out. 

The  experience  of  twenty  years  has  not  changed  materially 
the  court  of  arbitration,  but  the  boards  of  conciliation  have 
been  transformed.  They  were  always  a  cause  of  irritation 
and  legislative  tinkering,  as  they  seem  to  have  been  from 
the  beginning  little  more  than  boards  of  argumentation. 
Being  appointed  by  districts  rather  than  by  trades,  their 
members  had  no  expert  knowledge  of  the  particular  disputes 
brought  before  them.  In  the  present  law  of  compulsory  arbi- 
tration, enacted  in  1908,  the  machinery  of  the  boards  in  the 
Canadian  disputes  act  was  applied.  Commissioners  of  con- 
ciliation are  appointed  who  receive  appeals  and  who  appoint 
advisers  nominated  by  both  parties,  who  must  be  men  with 
practical  experience  in  the  trade  concerned,  either  as  em- 
ployers or  employees.  This  system  has  proved  to  be  more 
successful  than  the  earlier  system. 

As  to  strikes  and  lockouts,  the  first  act,  on  the  face  of  it, 
implied  an  equal  restriction  on  employers  and  employees. 
But,  as  employers  did  not  appeal  to  the  court,  and  as  the 
registration  on  each  side  was  voluntary  and  could  be  with- 
drawn on  short  notice,  the  act  meant  for  the  employees  vol- 
untary arbitration  with  an  enforceable  award.  This  worked 
smoothly  up  to  1906  while  wages  were  rising  and  the  coercion 
of  the  act  was  all  upon  the  employer. 

But  the  illegal  strikes  of  1907-1908  caused  Parliament  to 
increase  the  penalties  for  strikes  by  a  provision  forattach- 
ment  of  wages,  to  levy  comparatively  heavy  fines  on  unions 


158       PRINCIPLES  OF  LABOR  LEGISLATION 

whose  members  struck,  and  to  penalize  all  strikes  or  lockouts, 
whether  of  registered  unions  or  not,  which  were  made  without 
sufficient  notice  in  public  utilities  and  in  certain  industries,  the 
steady  continuance  of  which  is  affected  with  a  public  interest. 
This  was  adapted  from  the  Canadian  disputes  investigation  act 
of  1907.  The  waterside  strike  of  1913-1914  caused  Parlia- 
ment to  apply  a  somewhat  similar  provision  to  all  strikes  or 
lockouts  in  all  industries.  For  unregistered  unions  the  strike 
without  due  notice  is  not  prohibited.  For  registered  unions 
all  strikes  are  prohibited. 

As  far  as  one  can  judge  l  the  enforcement  of  penalties  for 
strikes  and  lockouts  has  been  pursued  coolly  and  persistently 
under  a  system  of  moderate  fines.  Half  the  strikes  which  have 
occurred  are  perfectly  legal  strikes — strikes  of  unregistered 
unions — but  there  have  been  a  number  of  serious  illegal  strikes. 
The  waterside  strike  of  1913-1914  started  with  unions  which 
had  a  perfect  right  to  strike  and  spread  by  sympathetic 
action  to  other  unions  registered  under  the  award,  which 
therefore  had  no  right  to  strike.  New  Zealand  has  not 
achieved  industrial  peace.  One  might  question  whether  a 
system  in  which  it  is  illegal  for  some  unions  to  strike  and 
'  legal  for  others  can  ever  be  satisfactory. 

The  act  of  1894  in  New  Zealand  recognized  registered 
unions  only.  Neither  the  individual  employer  nor  employee 
could  appeal  to  its  protection.  This  remains  true  for  the 
employee  under  the  latest  amendment,  but  the  individual 
employer  now  may  register. 

Though  the  first  act  contained  no  reference  to  preference 
to  unionists,  this  preference  was  granted  in  the  awards  as 
early  as  1896  and  was  incorporated  in  the  law  of  1900.  In  the 
earlier  awards  preference  to  unionists  simply  meant  that  if 
there  were  a  vacancy  a  union  man  must  be  given  preference 
over  a  non-union  man  of  similar  ability.  In  the  later  awards 
preference  to  unionists  has  become  equivalent  to  a  closed  shop, 
for  an  employer  is  ordered  to  discharge  a  non-union  man  in 
favor  of  an  unemployed  union  man.  Union  preference  is  cus- 
tomarily granted  where  the  union  can  show  that  it  had  a 
strong  organization  previous  to  the  dispute. 

1  Based  almost  entirely  upon  government  reports  and  parliamentary 
debates. 


COLLECTIVE  BARGAINING  159 

With  the  right  to  strike  taken  away,  the  problem  of  pro- 
tecting labor  leaders  against  victimization  has  consumed  con- 
siderable attention  both  of  the  courts  and  of  Parliament, 
without  results  satisfactory  to  the  unions.  Provisions  in  re- 
gard to  victimization  have  repeatedly  been  changed.  Some- 
times the  burden  of  proof  has  been  put  upon  the  employer, 
sometimes  upon  the  employee. 

Registered  unions,  therefore,  have  gained  a  preference 
which  amounts  almost  to  a  closed  shop  and  some  protection 
against  victimization,  but  at  the  expense  of  very  large  con- 
trol through  court  decisions.  Initiation  fees,  membership 
fees,  fines,  procedure  of  unions,  relations  to  other  unions,1 
all  have  been  brought  either  within  the  awards  or  within  other 
court  decisions.  A  recent  decision  which  applies,  however, 
to  all  unions,  whether  registered  or  not,  declares  that  union 
funds  may  not  be  used  for  political  purposes.2  Thus  the 
government  makes  politically  innocuous  the  labor  union  which 
it  encourages. 

It  might  be  answered  that  a  registered  union  is  free  to 
cancel  its  registration  and  thus  to  escape  control  by  the 
government,  if  obnoxious.  But  both  in  the  strikes  of  1908 
and  in  the  strike  of  1913-1914  the  employers  coerced  the  em- 
ployees into  registering  under  the  act  by  refusing  to  recognize 
any  union  which  had  not  registered.  This  practical  coercion, 
which  seriously  restricts  the  apparent  voluntary  character 
of  the  law  on  the  side  of  unions,  is  at  present  the  chief  cause 
for  complaint  by  labor  leaders. 

Where  arbitration  is  voluntary,  the  awards  represent  an 
adjustment  only  between  the  demands  of  the  two  parties  and 
are  based  on  their  relative  strength.  With  the  element  of 
coercion  the  third  party,  the  public,  enters  to  determine  that 
the  awards  shall  not  be  inconsistent  with  its  notions  of  a 
proper  standard  of  wages.  As  shown  above,  compulsory  ar- 
bitration in  New  Zealand  has  been  largely  voluntary  on  the 
part  of  the  employees.  Decisions,  therefore,  have  taken  into 
account  little  more  than  the  respective  demands  of  the  two 
parties.  But  in  two  respects  there  has  been  a  change  of  policy. 
Union  tactics  and  the  early  awards  limited  the  proportion  of 

1  New  Zealand,  Journal  of  the  Department  of  Labour,  January,  1914,  p.  3. 

2  Parliamentary  Debates,  4th  Session,  1914,  pp.  659-665. 


160       PRINCIPLES  OF  LABOR  LEGISLATION 

apprentices.  The  later  awards  generally  specify  no  limit,  but 
very  sharply  raise  the  wages  of  apprentices.  The  public  pur- 
pose of  open  opportunity  is  thus  subserved  without  being 
turned  to  the  private  end  of  the  substitution  of  apprentices 
for  journeymen.  Again,  the  earlier  acts  allowed  slow  workers 
to  receive  less  than  the  minimum  wage  only  with  the  consent 
of  the  secretary  or  president  of  the  union.  This  was  changed 
in  1908  by  allowing  a  state  official  to  grant  permits  to  slow 
workers. 

The  law  was  originally  passed  by  the  Liberal  Party,  favored 
by  the  labor  unions,  but  opposed  by  the  employers.  In  the 
crisis  of  1908  the  Liberal  Party  revised  the  law  against  the 
opposition  of  a  portion  of  the  Reform  Party  (the  chief  opposi- 
tion party)  and  of  the  Labor  Party.  This  revision  the  em- 
ployers favored.  In  the  debates  in  Parliament  the  leader  of 
the  opposition  (later  the  premier)  declared  himself  against 
compulsory  arbitration,  but  in  favor  of  an  act  somewhat 
similar  to  the  Canadian  disputes  act.  During  the  strike  of. 
1913-1914  the  Reform  Party,  later  in  power,  declared  in  favor 
of  compulsory  arbitration  and  added  to  the  law  amendments 
which  were  distasteful  to  the  Labor  Party.  At  the  present 
time  (1920),  however  they  differ  in  details,  all  parties  in 
Parliament  are  committed  to  the  principle  of  compulsory 
arbitration,  the  only  opposition  being  from  groups  not  yet 
represented  in  Parliament,  like  the  Socialists  and  Syndicalists. 

New  Zealand  was  not  exempt  from  labor  troubles  during 
the  war.  Whereas  the  arbitration  court  made  seventy-one 
awards  for  the  year  ending  March,  1915,  this  figure  was  raised 
to  168  for  the  year  ending  March,  191  7.  l  It  is  reported  that 
strikes  during  1917-1918  were  more  than  quadrupled  over  the 
preceding  year,  and  at  least  twelve  of  these  stoppages  were 
serious  in  extent.2  Nearly  all  strikes  were  among  the  un- 
registered unions.  Observers  of  the  situation  point  out  that 
it  is  now  the  tendency  for  workers  to  demand  direct  negotia- 
tion and  for  employers  to  refer  disagreement  to  the  court. 
The  fact  that  the  court  is  finding  it  difficult  to  enforce  penal- 
ties on  the  unions  contributes  to  the  dissatisfaction. 

By  far  the  most  cogent  explanation  of  the  sharp  rise  in  the 


Zealand  Official  Year  Book,  1915,  p.  758;  1917,  pp.  575-576. 
2  Christian  Science  Monitor,  September  16,  1919,  p.  5. 


COLLECTIVE  BARGAINING  161 

number  of  labor  disputes  was  the  inability  of  the  court  to 
review  wage  awards  to  keep  pace  with  increased  costs  of  living. 
Parliament  remedied  the  situation  in  1918  by  amending  the 
act,  granting  the  court  power  to  reconsider  awards  where 
wages  originally  fixed  had  become  inadequate  owing  to  war 
prices.  Despite  legislative  remedies  of  this  comparatively 
minor  character,  union  sentiment  against  the  court  is  appar- 
ently on  the  increase,  particularly  among  unregistered  unions 
which  object  to  the  coercive  efforts  of  the  employers  to  bring 
them  under  the  act. 

Turning  from  New  Zealand  to  Australia,  three  chief  facts 
appear  in  the  history  of  coercive  legislation:  (i)  The  laws  were 
enacted  and  administered  in  the  presence  of  a  large  labor 
party;  (2)  two  systems,  compulsory  arbitration  and*  wage 
boards,  have  grown  up  side  by  side,  until,  in  several  of  the 
states,  the  two  have  merged;  (3)  Australia,  as  a  federal  com- 
monwealth, has  had  both  federal  and  state  courts  of  arbitra- 
tjpn.  It  has  been  one  thing  to  enact  and  administer  laws  of 
compulsory  arbitration  in  the  presence  of  an  insignificant  labor 
party,  as  in  New  Zealand.  It  has  been  very  different  to  do 
the  same  in  Australia,  where  the  Labor  Party  was  first  a  large 
third  party,  later  a  large  second  party,  and  in  September, 
1915,  was  in  control  of  the  Commonwealth  and  the  majority 
of  the  states. 

The  period  of  the  strikes 'of  1890-1893  was  a  period  of  ex- 
traordinary growth  of  a  socialistic  Labor  Party.  In  1890 
there  was  but  one  labor  member  in  all  the  legislatures  of 
Australia.  In  1893  there  were  eighty  in  the  lower  houses.1 
The  members  of  the  upper  houses  are  elected  or  selected  under 
restrictive  conditions. 

This  movement  was  a  flash  in  the  pan,  but  with  the  creation 
of  the  Commonwealth  in  1899  a  much  more  solid  labor  move- 
ment developed.  There  was  a  labor  ministry  for  a  few  months 
in  1904,  another  labor  ministry  in  1910,  just  barely  defeated 
by  the  popular  vote  of  1913.  Again,  during  the  European 
war,  there  was  another  appeal  to  the  polls  and,  upsetting  all 
precedents  and  marking  the  distinction  between  the  Austra- 
lian labor  movement  and  labor  movements  elsewhere,  the 


1  St.  Ledger,  Australian  Socialism,  1909,  p.  56. 
11 


162       PRINCIPLES  OF  LABOR  LEGISLATION 

Labor  Party  was  victorious  in  a  campaign  based  on  its  record 
of  adopting  a  universal  military  service  act.  Queensland,  New 
South  Wales,  Western  Australia,  South  Australia,  and  even 
conservative  Tasmania  also  came  under  labor  ministries.  One 
large  state,  Victoria,  remained  anti-labor.  With  labor  par- 
ties taking  the  labor  vote,  with  anti-labor  parties  having  but 
slight  chance  of  any  large  labor  vote,  with  organization  of 
labor  on  the  farms  as  well  as  in  the  workshops,  Australia  is 
divided  politically  between  the  employer  and  the  employee. 
This  means  that  any  law  affecting  wage  bargains  is  enacted 
or  administered  by  a  party  which  unequivocally  represents 
one  or  the  other  side  to  the  bargain.  If  a  labor  party  is  in 
control  the  compulsion  of  a  compulsory  arbitration  law  is  not 
very  real  to  the  employee  nor  is  it  very  real  to  the  employer 
if  an  anti-labor  party  controls. 

The  two  Australian  states  with  the  largest  population, 
Victoria  and  New  South  Wales,  were  the  first  to  adopt  coer- 
cive measures,  but  one  adopted  the  wage  board  system,  while 
the  other  adopted  the  compulsory  arbitration  system.  In 
1896  Victoria  enacted  the  first  of  its  wage-board  laws.  In 
1901  New  South  Wales  enacted  its  first  law  of  compulsory 
arbitration.  Here  we  may  contrast  the  workings  of  the  mini- 
mum wage  boards  and  compulsory  arbitration  as  compared 
with  the  theoretical  differences  between  the  two  systems. 

In  the  early  'nineties  there  was  a  strong  humanitarian  move- 
ment in  Victoria,  increased  by  the  report  of  the  parliamentary 
board  of  1893  on  the  existence  of  sweated  labor  in  Melbourne. 
The  minimum  wage  bill,  as  originally  introduced,  applied  only 
to  women  and  was  intended  solely  for  the  benefit  of  those  who 
were  suffering  under  unfair  wage  conditions.  The  act  as 
finally  passed  in  1896  applied  to  both  sexes,  but  only  to  those 
industries  particularly  notorious  for  low  wages.  Each  wage 
board  consisted  of  a  chairman  and  an  equal  number  of  repre- 
sentatives elected  by  the  votes  of  all  employees  and  of  em- 
ployers. The  employer  had  votes  in  proportion  to  his  aver- 
age number  of  employees.  The  wage  board  fixed  wages, 
hours,  and  certain  other  matters,  but  could  not  grant  union 
preference.  This  method  of  election  of  representatives  prac- 
tically created  state  unions  of  employees  and  employers.  The 
method  proved  unsuccessful.  The  elected  employees  and 


COLLECTIVE  BARGAINING  163 

employers  were  too  much  committed  to  their  electors.  In  the 
present  system  the  employers  and  employees  on  the  board  are 
appointed,  presumably  from  the  more  reputable  employers 
and  less  militant  employees.  Decisions  are  based  on  what 
the  more  reputable  employer  pays  and  are  designed  to  pro- 
tect him  from  unfair  competition.  In  fact,  it  was  stated  in 
one  of  the  laws,  since  amended,  that  wage-board  decisions 
should  conform  to  what  was  "paid  by  reputable  employers  to 
employees  of  average  capacity."  This  has  gradually  brought 
employers  to  favor  the  law.  The  law  also  has  usually  been 
favored  by  the  Labor  Party.  It  does  not  take  away  the 
right  to  strike,  but  provides  such  a  ready  substitute  that 
Victoria,  more  than  any  other  of  the  Australian  states,  can 
claim  to  be  a  "country"  almost  "without  strikes." 

The  original  wage  boards  were  created  in  industries  noto- 
rious for  sweated  labor  and  brought  rapid  improvement  in  the 
condition  of  workers.  But  wage  boards  have  since  greatly 
increased  in  number  and  have  been  extended  to  industries 
where  wages  are  high  and  labor  is  organized.  To  mark  the 
change  of  purpose  in  the  creating  of  new  wage  boards  it  is 
sufficient  to  say  that  two  of  the  new  boards  of  1912  were 
created  against  the  protest  of  the  labor  members  of  Parlia- 
ment, one  of  them  at  the  petition  of  the  employers,  and  that 
another  wage  board  was  given  authority  only  over  men 
workers  because  the  women  petitioned  not  to  be  brought 
under  it.  The  wage-board  system  of  Victoria,  therefore,  has 
been  extended  beyond  its  original  purpose  and  has  become 
method  of  protecting  reputable  employers  from  unfair  com- 
petition and  insuring  industrial  peace  by  providing  a  ready 
means  of  adjustment  of  grievances. 

Turn  now  to  the  turbulent  history  of  New  South  Wales. 
Before  compulsory  arbitration  was  adopted,  New  South  Wales 
\vus  much  more  subject  than  Victoria  to  serious  strikes,  and 
such  it  has  remained.  This  one  state  furnishes  more  than  half 
of  the  days  lost  by  strikes  in  all  of  Australia.1  Compulsory 
arbitration  cannot  be  said  to  have  increased  such  disputes, 
but  simply  not  to  have  stopped  them.  After  a  futile  volun- 
tary arbitration  law  of  1892,  New  South  Wales  passed  its  first 

1  Australia,  Commonwealth  Bureau  of  Census,  Labour  Bulletin  No.  4, 
February,  1914,  p.  262. 


1 64       PRINCIPLES  OF  LABOR  LEGISLATION 

compulsory  law  in  1901.  This  act  was  especially  important 
because  on  it  was  based  the  present  Commonwealth  act  of 
1904.  Here  was  first  introduced  the  unique  feature  later 
copied  in  the  Commonwealth  act,  that  the  court  itself  must 
give  its  consent  before  any  prosecution  for  a  violation  of  the 
nature  of  a  strike  or  lockout  could  be  commenced.  That 
consent  was  not  frequently  granted.  For  the  rest,  the  act 
provided  for  a  single  court  with  final  determinations  on  all 
matters  within  the  scope  of  the  act.  Preference  could  be 
granted  to  unionists. 

The  act  expired  in  1908.  The  single  court  had  not  disposed 
of  the  cases  brought  before  it  with  sufficient  rapidity.  The 
anti-labor  ministry  in  power  at  that  time  adopted  a  compre- 
hensive system  of  wage  boards  modeled  after  the  Victorian 
system,  whose  determinations  were  subject  to  appeal  to  a 
special  court  of  arbitration.  All  strikes  were  declared  illegal. 
A  system  of  fines  was  adopted  to  reach  the  union  funds. 
Strikes,  almost  of  the  character  of  rebellion,  followed,  and 
the  next  year  the  same  ministry  rushed  through  a  bill  ap- 
plicable to  strikes  in  certain  necessary  industries,  like  coal 
mining.  These  provided  a  penalty  of  not  exceeding  twelve 
months'  imprisonment  for  instigating  strikes  and  the  same 
length  of  time  for  mere  participation  in  a  strike  meeting. 
Immediately  there  followed  a  strike  of  all  the  coal  miners  in 
New  South  Wales.  The  situation  became  intolerable  and  the 
Labor  Party  came  back  to  power.  A  new  act  was  passed  in 
1912.  The  severe  penalties  were  withdrawn  and  special  con- 
ciliation boards  were  created  for  mine  workers. 

But  neither  under  anti-labor  ministries  nor  under  the  present 
labor  ministry  is  New  South  Wales  industrially  quiet.  Frantic 
assertion  of  authority  has  been  followed  by  flabbiness  in  the 
administration  of  the  law.  This  has  resulted  in  a  series  of 
headless  strikes.1  The  officials  of  the  union,  who  might  be 
prosecuted,  make  a  show  of  dissuading  the  men,  and  the  men 
strike  with  neither  political  nor  economic  consequences,  as 
the  government  will  not  prosecute  the  rank  and  file,  and 
the  employer  is  bound  by  the  awards.  Practically  the  com- 

1  Based  on  the  report  of  the  American  Trade  Commission  of  the 
National  Association  of  Manufacturers  and  the  Australian  Worker , 
Sydney. 


COLLECTIVE  BARGAINING  165 

pulsory  arbitration  system  of  New  South  Wales  has  become 
an  imperfect  wage-board  system. 

Among  the  other  states,  Western  Australia  copied  the  New 
Zealand  model  in  its  first  law  of  1902.  But,  as  in  New  Zea- 
land, the  district  conciliation  boards  proved  a  failure.  In  the 
laws  of  1912  they  were  abolished,  and  now  the  court  may  ap- 
point advisers  or  "  assessors  "  to  assist  it.  Interestingly  enough, 
union  preference,  provided  in  the  earlier  law,  disappears  from 
the  later  one  in  spite  of  the  fact  that  the  new  law  was  passed 
by  a  labor  ministry.  Reports  of  the  actual  working  of  the 
law  are  contradictory.  The  two  other  states,  Queensland  and 
South  Australia,  passed  their  first  law  in  1912,  in  both  cases 
by  the  anti-labor  party.  The  Queensland  law  was  the  result 
of  a  street-car  strike.  The  South  Australian  law  is  noteworthy 
for  its  severe  and  elaborate  penalties  for  acts  connected  with 
strikes,  such  as  picketing.  These  systems  have  been  in  exist- 
ence too  short  a  time  to  show  their  actual  working. 

Among  the  provisions  of  the  new  Commonwealth  constitu- 
tion of  Australia,  adopted  in  1899,  was  the  right  to  create  a 
compulsory  arbitration  court  for  interstate  disputes.  This 
right  was  made  substantial  in  1904  by  the  passage  of  the 
industrial  arbitration  act.  The  law  was  modeled  on  the  1901 
act  of  New  South  Wales.  There  was  no  system  of  wage 
boards,  but  simply  a  single  court  of  arbitration  with  its  presi- 
dent the  sole  member.  This  court  not  only  hears  appeals, 
but  can  on  its  own  initiative  summon  parties.  Its  determina- 
tions are  final,  but  it  "may"  state  a  case  to  the  high  court 
(the  supreme  court  of  the  Commonwealth)  for  advice.  As 
in  the  New  South  Wales  law,  no  prosecution  can  be  started 
against  any  one  for  a  strike  or  a  lockout  without  the  consent 
of  the  court.  Since  this  consent  has  never  been  given  in 
the  case  of  a  strike  the  law  is  scarcely  more  than  a  minimum 
wage  law. 

The  scope  of  its  power  in  relation  to  the  state  courts  is,  for 
us,  the  most  interesting  question.  The  law  gives  to  the  court 
power  over  "disputes  extending  beyond  the  limits  of  any  one 
state" — except  in  regard  to  disputes  in  agricultural  indus- 
tries. Subsequent  acts  have  attempted  to  enlarge  its  scope, 
but  have  been  declared  unconstitutional,  and  when  Justice 
Higgins,  the  president,  has  submitted  a  case  to  the  high  court, 


166       PRINCIPLES  OP  LABOR  LEGISLATION 

the  rulings  of  the  court  have  usually  been  restrictive  against 
the  Commonwealth.  Uncertainty  has  remained  as  to  what 
is  a  "dispute"  and  what  is  really  meant  by  "extending  be- 
yond the  limits  of  one  state."  It  is  obvious  that  if  a  request 
for  a  change  of  wages  paid  by  two  different  employers  in  two 
different  states  constitutes  a  "dispute  extending  beyond  the 
limits  of  one  state"  the  Commonwealth  court  can  strip  the 
-  state  courts  of  any  real  power.  Already  the  court  has  deter- 
mined wages  on  the  local  tramways  from  Perth  on  the  west 
coast  to  Brisbane  on  the  east  coast. 

A  curious  distinction  has  been  made  by  the  high  court,  by 
which  wage-board  decisions  of  Victoria  are  considered  part 
of  the  Victorian  law  and  have  restrictive  power  over  rulings 
by  the  Commonwealth  Court  of  Arbitration,  where  applied 
within  that  state,  while  the  awards  of  arbitration  courts  of  the 
several  states  are  not  regarded  as  law  and  have  no  restrictive 
power.  This  led  in  1912  to  the  employers  of  Victoria  petition- 
ing that  the  building  trade  laborers  of  that  state  be  brought 
under  a  state  wage  board,  as  the  latter  were  seeking,  with  the 
building  laborers  of  other  states,  to  come  under  the  Common- 
wealth Court  of  Arbitration.  The  Labor  Party  stands  com- 
mitted to  the  abolition  of  state  courts  of  arbitration,  their  place 
to  be  taken  by  district  courts  under  the  authority  of  the 
Commonwealth . 

Unlike  New  Zealand,  there  can  be  no  legal  strike  in  Aus- 
tralia outside  of  Tasmania  and  Victoria,  since  the  compulsory 
arbitration  laws  have  "blanket"  provisions  against  strikes 
and  lockouts.  But,  with  governments  either  purely  labor  or 
purely  anti-labor,  the  administration  of  these  laws  seems  to 
have  been,  at  least  in  New  South  Wales,  either  absurdly  flabby 
or  absurdly  frantic.  Instead  of  the  government  acting  as  a 
judge  it  becomes  a  plaintiff  or  defendant  determining  the  ad- 
ministration of  law. 

More  Commonwealth  ministries  have  been  wrecked  on  both 
sides  of  the  question  of  "Union  preference"  than  on  any  other 
question.  Union  preference,  which  is  used  as  a  harmless  bait 
in  New  Zealand  to  bring  labor  unions  under  the  act,  becomes 
a  grave  political  question  in  the  states  and  in  the  Common- 
wealth, where  the  vote  of  labor  and  its  opponent  is  very  close. 
New  South  Wales  has  adopted  union  preference  in  its  com- 


COLLECTIVE  BARGAINING  167 

pulsory  arbitration  acts.  Rather  curiously,  Western  Australia, 
with  the  strongest  labor  party  of  all  the  states,  repealed,  in 
1912,  the  provisions  regarding  union  preference  which  had 
existed  in  the  act  of  1902.  The  Commonwealth  court  has  had 
the  right  to  grant  union  preference,  but  Justice  Higgins,  al- 
though once  a  member  of  a  labor  ministry,  grants  union  prefer- 
ence, not  as  in  New  Zealand  in  cases  where  there  is  a  strong 
union,  but  only  in  cases  where  a  union  has  been  oppressed. 

In  most  of  the  states  decisions  are  based  on  existing  strength 
of  the  parties,  and  are  similar,  therefore,  to  decisions  in  a  court 
of  voluntary  arbitration.  But  Justice  Higgins  of  the  Com- 
monwealth court  has  chosen  for  his  minimum  for  the  lowest 
paid  laborers  not  the  customary  wage,  nor  a  wage  based  on 
the  strength  of  the  union,  but  a  wage  based  on  a  standard  of 
living.  This  was  most  sharply  shown  in  the  decision  in  1914 
in  the  case  of  the  dock  laborers,  where  probable  annual  earn- 
ings, taking  into  account  fluctuations  of  employment,  were 
taken  as  the  basis  for  an  hourly  wage.1  -We  have  thus  trav- 
eled far  from  voluntary  arbitration  or  strikes,  with  wages  de- 
termined by  the  strength  of  the  two  parties,  far  from  minimum 
wages  based  on  what  the  more  reputable  employers  pay,  to  a 
determination  of  wages  on  a  consumers'  standard  of  living.  JX. 

The  recent  history  of  the  Commonwealth  Court  of  Arbitra- 
tion has  been  marked  by  more  explicit  definition  of  its  powers 
and  the  establishment  of  precedents.  Two  amendments  to 
the  Commonwealth  act  were  made  in  1915  and  1918.  The 
earlier  amendment  enabled  a  justice  of  the  high  court  to  decide 
finally  whether  a  dispute  extended  beyond  the  limits  of  any 
one  state,  which  was  the  chief  limitation  of  the  powers  of  the 
court  of  arbitration.  The  court  affirmed  the  right  of  free 
bargaining  in  the  case  of  workers  refusing  to  accept  hire  at 
the  minimum  wage,  when  they  believed  their  skill  rated  a 
higher  wage.  In  the  consideration  of  minimum  wage  princi- 
ples during  the  war,  the  court  continued  its  policy  of  basing 
the  minimum  on  a  standard  of  living.  The  tendency,  how- 
ever, was  to  make  the  wages  of  the  skilled  and  unskilled 
workers  meet;  the  basic  wage  was  increased,  but  the  second- 
ary wage  was  increased  only  by  the  pre-war  margin  between 


1  New  Statesman,  June  6,  1914,  p.  262. 


1 68        PRINCIPLES  OF  LABOR  LEGISLATION 

the  two  scales,  not  proportionally.  One  of  the  most  fruitful 
features  of  the  court's  power  is  its  right  to  appoint  "boards 
of  reference,"  by  means  of  which  the  meeting  of  representa- 
tives of  unions  with  employers  is  encouraged.  Of  late  these 
"boards  of  reference"  have  tended  to  develop  along  the  lines 
of  the  Whitley  suggestions  in  Great  Britain. 

During  the  past  three  years  there  have  been  but  four  strikes 
without  previous  reference  to  the  court.  The  miners'  strike  of 
October,  1916,  was  mainly  political  in  its  aspects,  and  could 
not  be  attributed  to  either  the  success  or  the  failure  of  the 
act.  However,  in  June,  1917,  the  glass-bottle  makers  struck 
without  reference  to  the  court,  and  only  by  the  power  of  the 
court  to  call  a  compulsory  conference  were  the  unions  penal- 
ized and  the  men  forced  back  to  work  on  the  employers'  terms. 
In  the  sympathetic  strike  of  waterside  workers  in  August, 
1917,  the  court  was  powerless  to  act,  inasmuch  as  the  stoppage 
was  not  in  direct  violation  of  the  terms  of  its  award.  The 
prime  minister  sought  to  cancel  the  registration  of  the  union 
with  the  court,  hoping  thereby  to  kill  the  award  under  which 
it  was  working.  The  principle  involved  was  whether  the  court 
had  jurisdiction  over  a  sympathetic  strike  extending  beyond 
the  limits  of  any  one  state.  The  settlement  finally  made  by 
mediation  of  Justice  Higgins  with  union  leaders  denied  the 
court's  jurisdiction  over  sympathetic  strikes.1  A  recrudes- 
cence of  this  strike  occurred  in  September,  1919.  The  union 
apparently  harbored  its  grievance  against  the  government  for 
high-handed  action  in  the  previous  dispute,  and  added  to  this 
grudge  some  of  the  "direct  action"  principles  of  syndicalists. 
The  union  announced  its  strike  to  the  court  twenty-four  hours 
beforehand,  but  in  attempts  at  settlement  of  wage  demands 
the  court  twice  used  the  compulsory  conference  method  with- 
out success.  At  the  end  of  1919  the  ultimate  outcome  was 
still  in  doubt;  but  the  instance  indicates  that  labor's  opinion 
of  the  court  is  not  unanimously  favorable,  nor  is  the  court's 
compulsory  power  always  effective  in  serious  disputes. 

c.  Canada  and  the  United  States.  In  Canada  and  the  United 
States  we  again  contrast  the  situation  of  the  classes.  Australia 
is  ruled  by  a  labor  party.  Labor  in  the  United  States  has  never 

1  H.  B.  Higgins,  "A  New  Province  for  Law  and  Order,"  Harvard  Law 
Review,  January,  1919,  pp.  189-217. 


COLLECTIVE  BARGAINING  169 

been  a  chief  minority  party.  Where  it  has  been  a  straight 
conflict  between  labor  on  one  side  and  the  other  elements  of 
society  on  the  other  side,  labor  has  been  defeated  at  the  polls. 
Again,  in  regard  to  unionization,  the  unskilled  and  semi-skilled 
are  unionized  in  but  a  few  industries.  Organized  labor  is, 
for  the  most  part,  organized  skilled  labor.  Such  labor  is 
strong  at  industrial  bargaining;  it  is  weak  only  at  the  polls. 
It  is  therefore  no  blindness,  but  wise  calculation,  which  has  set 
the  leaders  of  organized  labor  against  government  interference 
in  industrial  disputes.  They  could  not  count  on  controlling 
government,  and  they  cannot  predict  what  standard  the  gov- 
ernment would  use  in  its  awards.  Unions  which  have  gained 
for  their  members  the  more  desirable  conditions  of  labor  are 
not  willing  to  risk  what  they  have  gained  for  a  doubtful  stand- 
ard imposed  by  the  outside  public  which  might  take  into 
account  the  average  and  not  the  exceptional  condition  of 
labor. 

The  employers,  also,  are  afraid  of  compulsory  arbitration.  -. 
Through  their  voting  rights  alone  they  have  even  less  power 
at  the  polls  than  the  skilled  workmen.     Only  by  other  means 
and  by  the  aid  of  other  classes  can  they  control  politics. 

There  is  but  one  class  which  would  be  likely  to  gain  by  en- 
forcing higher  standards.  It  is  the  immense  but  miscellane- 
ous class  of  unskilled  and  semi-skilled  men,  and  of  women  and 
children.  They  have  no  voice  to  make  their  wishes  known. 

Against  the  joint  opposition  of  organized  labor  and  capital, 
compulsory  arbitration  makes  little  headway  in  the  legisla- 
tures, in  spite  of  the  agitation  that  follows  every  great  strike. 
Only  occasionally  has  it  come  within  the  zone  of  practical 
politics.  Once  was  when  the  anthracite  coal  strike  of  1902 
put  the  voluntary  system  to  a  considerable  strain.  Arbitra- 
tion was  accepted  by  the  employers  only  after  pressure  was 
put  upon  them  by  the  President  of  the  United  States.  A 
second  time  was  in  1920,  when  the  Kansas  agrarian  legisla- 
ture, at  a  special  session  called  for  the  purpose,  adopted  the 
first  real  compulsory  arbitration  law  in  the  United  States. 

In  the  report  on  the  arbitration  award  governing  the  de- 
mands of  the  eastern  locomotive  engineers  in  1912,  the  chair- 
man, representing  the  public,  advocated  a  permanent  wage 
commission  and  added :  ' '  Is  it  unreasonable  to  ask  that  men 


1 70       PRINCIPLES  OF  LABOR  LEGISLATION 

in  the  service  of  public  utilities  shall  partially  surrender  their 
liberty  in  the  matter  of  quitting  employment,  so  that  the 
nation  as  a  whole  may  not  suffer  disproportionately? "  x  The 
sharpest  criticism  of  this  doctrine  came  from  the  minority 
report  representing  the  engineers:  "To  insure  the  permanent 
industrial  peace  so  much  desired  will  require  a  broader  states- 
manship than  that  which  will  shackle  the  rights  of  a  large 
group  of  our  citizens."  2  When  the  western  railroad  arbitra- 
tion of  1915  resulted  unsatisfactorily  to  the  brotherhoods  the 
minority,  representing  them,  protested  that  "no  act  by  a 
governmental  tribunal  could  more  keenly  bring  home  to  the 
wage-earners  of  this  country  the  consideration  they  might  ex- 
pect if  boards  under  governmental  supervision  and  control 
were  to  review  and  adjust  their  wages  and  working  conditions 
on  that  basis."  And  so  the  matter  in  the  main  stands:  the 
employers  are  dissatisfied  with  what  they  consider  one-sided 
compulsory  arbitration,  the  employees  attack  any  greater 
measure  of  coercion. 

One  of  the  objections  frequently  raised  against  compulsory 
arbitration  is  its  unconstitutionality  in  violation  of  the  thir- 
teenth amendment,  in  that  it  imposes  involuntary  servitude 
other  than  punishment  for  crime.  This  objection  is  probably 
not  sound.  We  have  already  seen3  that  quitting  work  col- 
lectively in  pursuance  of  an  unlawful  agreement  contains  the 
element  of  conspiracy  which  makes  a  strike  essentially  differ- 
ent from  the  ordinary  quitting  of  work.  Such  a  concerted 
agreement  may  be  enjoined  and  punished  as  contempt,  and 
there  are  sufficient  precedents  in  the  decisions  to  warrant  the 
constitutionality  of  imposing  penalties,  should  a  compulsory 
arbitration  law  be  shrewdly  drafted  and  popularly  supported. 
It  is  not  enough  to  raise  the  objection  of  constitutionality, 
for  constitutions  change  with  interpretation.  The  lasting  ob- 
jections must  be  found  elsewhere. 

While  the  United  States  has  not  gone  very  far  with  com- 
pulsory arbitration,  and  Canada  has  not  adopted  it  at  all, 


1  Report  of  the  Board  of  Arbitration  in  the  Matter  of  the  Controversy  be- 
tween the  Eastern  Railroads  and  the  Brotherhood  of  Locomotive  Engineers, 
1912,  p.  107. 

2  Ibid.,  p.  123. 

3  See  "The  Law  of  Conspiracy,"  pp.  101-104. 


COLLECTIVE  BARGAINING  171 

both  countries  have  for  several  years  maintained  coercive 
features  at  three  different  steps  in  the  procedure  of  govern- 
mental arbitration.  These  are  compulsory  investigation,  the 
enforcement  of  awards  which  have  been  accepted  by  both 
parties,  and  the  prohibition  of  sudden  change  of  terms  or 
sudden  strikes  or  lockouts. 

The  first  is  for  the  sake  of  official  and  public  information. 
Directly  it  can  have  no  effect  on  the  bargaining  rights  and  the 
bargaining  tactics  of  the  two  parties.  It  is  embodied  in  some 
of  the  state  laws  of  voluntary  arbitration  and  was  a  part  of 
the  federal  act  of  I888.1  But  when  it  was  proposed  in  the 
Townsend  bill  in  1904  to  give  that  power  again  to  a  commission 
appointed  by  the  President,  the  bill  was  defeated,  for  at  the 
hearing  appeared  against  it  the  representatives  of  the  Ameri- 
can Federation  of  Labor,  the  railroad  brotherhoods,  and  the 
American  Anti-boycott  Association. 

In  the  Canadian  industrial  disputes  investigation  act  col- 
lective bargaining  itself  was  for  the  first  time  in  North  America 
made  subject  to  the  coercion  of  government.  That  act  makes 
a  sudden  change  of  terms  and  a  strike  or  lockout  without 
sufficient  notice  unlawful  in  a  certain  class  of  industries 
affected  with  a  public  interest.  The  industries  are  public 
utilities  and  mines.  In  1906,  the  year  before  its  passage, 
there  had  been  a  prolonged  strike  in  the  Alberta  coal  mines 
which  threatened  a  coal  famine.  The  act  makes  it  unlawful 
in  such  industries  to  change  the  terms  of  employment  without 
thirty  days'  notice,  and  requires  that,  if  within  that  time 
appeal  is  taken  to  the  minister  of  labor,  the  terms  of  employ- 
ment shall  remain  the  same  pending  an  investigation.  It  is 
likewise  unlawful  to  strike  or  lock  out  until  after  a  hearing 
and  findings  by  the  investigating  board.  Then  either  a  change 
of  terms,  or  a  strike,  or  a  lockout  is  perfectly  lawful.  The  act 
is  coercive  only  against  the  sudden  strike  and  the  sudden 
change  of  terms.  Upon  application  the  minister  of  labor  ap- 
points a  board  to  which  the  employees  nominate  one  man, 
the  employers  another,  and  the  two  men  nominate  the  chair- 
man. In  case  of  failure  to  nominate  the  minister  does  the 
selecting. 


1  See  "Mediation  by  Government,"  pp.  137,  138. 


172        PRINCIPLES  OF  LABOR  LEGISLATION 

The  success  of  the  law  seems  attributable  largely  to  the 
conciliatory  efforts  of  the  department  of  labor,  to  dislike  for 
publicity  rather  than  fear  of  penalty,  and  to  the  "existence  of 
a  means  of  negotiation  rather  than  a  means  of  restriction." 
From  the  inception  of  the  act  to  December,  1916,  there  were 
204  illegal  strikes  or  lockouts,  two  of  them  lockouts.  One 
hundred  and  seventy-eight  of  these  stoppages  occurred 
without  either  party  seeking  the  aid  of.  the  act.  An  ille- 
gal strike  or  lockout  under  the  law  is  action  taken  be- 
fore reporting  the  dispute  to  the  board,  or  before  'the 
investigation  and  report  of  a  legally  constituted  board. 
There  have  been  only  eleven  prosecutions,  with  aggregate 
fines  of  $i,66o.1  The  employers  favor  the  law.  As  to  the 
employees,  the  miners  are  hostile,  the  railroad  men 
generally  favor  it.  Other  classes  of  labor  are  mild  in  their 
attitude. 

The  Canadian  disputes  act  instantly  appealed  to  the  public 
or  to  the  employers  of  other  lands.  Part  of  its  machinery 
was  adopted  the  following  year  (1908)  in  New  Zealand.  An 
act  somewhat  similar  was  passed  in  the  Transvaal  in  1909. 
Bills  based  on  its  principles  were  introduced  into  the  legisla- 
tures of  New  York,  Wisconsin,  and  California,  but  it  was 
not  until  the  upheaval  in  Colorado  in  1914-1915  that  a 
law  was  actually  passed  in  the  United  States  embodying 
restrictions  on  change  of  terms  of  employment  and  on  strikes 
and  lockouts. 

The  law  of  191 5  2  gives  to  the  Industrial  Commission  of 
Colorado,  among  its  other  powers,  the  power  to  compel  a 
hearing  in  the  case  of  an  industrial  dispute,  and  to  deliver  an 
award,  which,  like  those  under  the  Canadian  act,  is  not 
mandatory.  As  in  the  Canadian  act,  change  of  terms  of  em- 
ployment, strikes,  and  lockouts  are  prohibited  until  after  thirty 
days'  notice  and  until  after  a  hearing  and  award  if  such  hear- 
ing is  started  within  the  time  of  notice.  Going  beyond  the 
Canadian  act,  which  is  limited  to  public  utilities  and  mines, 
the  Colorado  law  covers  all  employees  except  those  in 
domestic  service,  in  agriculture,  and  in  establishments  em- 

1  United  States  Department  of  Labor,  Monthly  Labor  Review,  Septem- 
ber, 1917,  pp.  i-n. 

2  Colorado,  Laws  1915,  C.  180, 


COLLECTIVE  BARGAINING  173 

ploying  less  than  four  hands.  The  law  was  first  invoked  l 
when  a  large  cracker  company  announced  a  decrease  of  wages 
to  take  effect  the  following  week.  Some  of  the  employees 
struck  and  the  commission  ordered  the  employers  to  submit 
their  proposed  reduction  to  the  commission  and  the  employees 
to  resume  work.  Both  sides  obeyed.2  ''No  longer  is  a  strike 
a  private  affair,"  was  the  editorial  comment  in  a  prominent 
Denver  paper'.3  Continued  experience  under  the  law  causes 
the  industrial  commission  to  report  that  it  has  amply  accom- 
plished the  purpose  for  which  it  was  enacted.  The  provision 
requiring  thirty  days'  notice  before  a  change  in  terms  of  em- 
ployment, "against  which  violent  criticism  has  been  directed, 
has  saved  the  situation  innumerable  times."  4  During  the  year 
and  a  half  ending  with  October,  1918,  a  total  of  196  cases 
were  recorded  by  the  commission,  which  states  that  "there 
were  not  over  half  a  dozen  controversies  or  strikes  occurring 
in  this  state  since  this  commission  has  been  in  office  which 
are  not  included"  in  this  list.  In  connection  with  145  of  the 
196  cases  reported  on,  the  statutory  thirty-day  notice  was 
given;  only  nine  strikes  occurred  without  such  notice.  Fifty- 
eight  disputes  were  settled  by  an  award  of  the  commission 
or  after  conference  with  it,  and  seventy-eight  by  the  employ- 
ers and  employees  concerned,  in  many  of  which  cases  the 
joint  conferences  were  suggested  or  directed  by  the  commis- 
sion. In  five  cases  commission  awards  were  accepted  by  the 
employers  but  rejected  by  the  men. 

The  Kansas  law  of  1920  establishing  compulsory  arbitra- 
tion creates  a  " court  of  industrial  relations,"  composed  of 
three  judges  appointed  by  the  governor  for  three-year  terms. 
The  manufacture  of  food  products,  the  manufacture  of  "cloth- 
ing and  all  manner  of  wearing  apparel  in  common  use  by  the 
people,"  the  mining  or  production  of  fuel,  "the  transportation 
of  all  food  products  and  articles  or  substances  entering  into 
wearing  apparel  or  fuel,"  and  all  public  utilities  and  common 
carriers  as  defined  under  the  general  statutes  of  Kansas,  are 
declared  to  be  affected  with  a  public  interest  and  therefore 
subject  to  supervision  by  the  state  "for  the  purpose  of  pre- 

1  August,  1915.  2  Rocky  Mountain  News,  August  10,  1915. 

3  Ibid.,  August  11,  1915. 

4  Industrial  Commission  of  Colorado,  Second  Report,  1918,  p.  99. 


i74       PRINCIPLES  OF  LABOR  LEGISLATION 

serving  the  public  peace,  protecting  the  public  health,  pre- 
venting industrial  strife,  disorder  and  waste,  and  securing 
regular  and  orderly  conduct  of  the  business  directly  affecting 
the  living  conditions  of  the  people."  In  case  of  a  serious 
controversy  in  any  of  the  industries  covered,  the  court  of 
industrial  relations  is  authorized  on  its  own  motion,  or  on 
complaint  of  any  ten  tax-paying  citizens  in  the  locality,  to 
'  summon  the  parties  before  it  and  to  investigate  the  conditions 
of  the  industry.  The  findings  of  the  court  are  to  state 
"specifically  the  terms  and  conditions  upon  which  said  in- 
dustry .  .  .  should  be  thereafter  conducted."  The  court  is 
to  "order  such  changes,  if  any,  as  are  necessary  to  be  made  in 
and  about  the  conduct  of  said  industry  ...  in  the  matter  of 
working  and  living  conditions,  hours  of  labor,  rules  and  prac- 

>  tices,  and  a  reasonable  minimum  wage  or  standard  of  wages." 
The  standards  set  up,  however,  must  be  "such  as  to  enable 
such  industries  ...  to  produce  or  transport  their  products  on 
continue  their  operations  and  thus  to  promote  the  general 
welfare."     The   court   is   empowered   to   bring   suit   in   the 
supreme  court  of  the  state  to  compel  compliance  with  any 
'of  its  orders.     On  the  other  hand,  either  party  to  a  contro- 
versy which  feels  aggrieved  at  an  order  may  sue  within  ten 
days  to  compel  the  court  of  industrial  relations  to  issue  a 
reasonable  order.     The  right  of  collective  bargaining  is  ex- 
pressly recognized,   but   strikes,   picketing,   boycotting,   and 

>  similar  acts  to  enforce  labor's  claims  are  forbidden.     On  the 
other  hand,  the  discharge  of  employees  for  bringing  contro- 
versies to  the  attention  of  the  court,  or  for  testifying  before 
it,  is  prohibited,  and  the  right  of  workmen  to  -quit  their  em- 
ployment individually  is  not  restricted.     In  case  of  actual 
suspension  or  limitation  of  operation  in  any  industry  covered 

.by  the^tct,  the  court  may  take  it  over  and  operate  it  during 
the  emergency.  Employers  and  workmen  in  industries  to 
which  the  act  does  not  apply  may  voluntarily  submit  their 
disputes  to  the  court.  To  give  the  justices  of  the  court  con- 
tinuous first-hand  acquaintance  with  the  conditions  of  life 
and  labor,  they  are  authorized  to  make  studies  of  industrial 
matters  either  within  the  state  or  elsewhere.  Soon  after  the 
enactment  of  this  measure  in  Kansas,  efforts  to  secure  similar 
legislation  were  begun  in  several  other  states. 


COLLECTIVE  BARGAINING  175 

4.  UNIONS  OF  GOVERNMENT  EMPLOYEES 

With  the  broadening  scope  of  the  state  as  an  industrial 
employer,  the  collective  bargain  is,  in  some  cases,  entered  upon 
even  by  the  government  with  its  employees.  Here  it  presents 
a  peculiar  problem.  The  state  1  employs  permanently  larger 
bodies  of  workers  than  any  other  single  employer.2  It  is  not 
subject  to  the  competition  that  limits  the  private  employer  in 
his  bargain  with  labor,  and  it  is  the  medium  through  which 
the  employee  with  the  suffrage  becomes  in  a  measure  his  own 
employer.  In  such  states  as  allow  practically  universal  suf- 
frage it  then  seems  less  necessary  for  the  public  employee  to 
use  the  weapon  of  strike  or  boycott  employed  by  the  private 
worker  in  his  struggle  for  better  wages  and  working  conditions. 

(i)  Recognition  of  Unions 

The  right  of  the  public  employee  to  strike  is  not  conceded 
by  government,  although  in  many  countries  the  right  of  gov- 
ernment workers  to  organize  is  not  denied  them.  Russia, 
under  the  old  regime,3  Turkey,4  and  Roumania 5  forbade  con- 
certed action  on  the  part  of  government  employees  under 
penalty,  and  even  in  republican  France  public  strikes  are 
forbidden  and  punished,6  while  the  right  of  public  employees 
to  organize  is  at  least  doubtful  and  certainly  restricted.7  Even 
in  the  United  Kingdom,  in  Australasia  and  the  United  States, 


1  Meaning  the  governmental  unit,  national,  state,  or  municipal. 

2  The  United  States  government  on  June  30,  1914,  had  in  its  employ 
482,721  persons  (United  States  Civil  Service  Commission,  Report,  1915, 
p.  6),  approximately  the  same  number  as  employed  in  the  entire  iron.and 
steel  industry  in  the  United  States.     To  this  number  should  be  added 
the  employees  of  state  and  local  governments. 

3  Imperial  ukase  of  December,  1905  (Bulletin  of  the  International  Labor 
Office,  Vol.  I,  1906,  p.  51). 

4  Act  of  November  6,  1908  (Ibid.,  Vol.  Ill,  1908,  p.  331). 

6  Decree  of  December  19,  1909  ({bid.,  Vol.  V,  1910,  p.  437). 

6  Order  of  March  18,  1909,  relating  to  the  organization  of  disciplinary 
committees  of  the  outdoor  staffs  of  the  postal  and  telegraph  service, 
providing  penalties  for  ''collective  or  concerted  refusal"  on  the  part 
of  the  staff.     (Ibid.,  Vol.  IV,  1909,  p.  293.) 

7  The  minister  of  public  education  maintained  in  1912  that  under  the 
law  of  1884,  which  gave  legal  standing  to  labor  unions,  syndicates  of 
teachers  were  not  recognized,  and  such  a  syndicate  was  dissolved  by  the 
French  government.     See  American  Federationist,  February,  1913,  p.  136. 


i76       PRINCIPLES  OF  LABOR  LEGISLATION 

where  government  employees  are  nominally  allowed  to  com- 
bine, trade  unionism  among  public  employees  is  not  freely 
tolerated,  there  being  still  a  general  sentiment  that  opposition 
of  public  employees  to  the  government  savors  strongly  of 
insubordination  and  unpatriotism.1  This  feeling  became  very 
manifest  in  the  summer  of  1919,  when  efforts  of  the  police 
and  fire  departments  to  organize  in  several  American  cities 
were  met  by  the  almost  unanimous  opposition  of  the  authori- 
ties. In  Boston  the  discharge  of  several  policemen  for  join- 
ing a  union  affiliated  with  the  American  Federation  of  Labor 
led  to  a  strike  in  which  the  men  were  finally  defeated  and  a 
new  force  was  organized.  About  the  same  time,  after  police 
strikes  in  London  and  other  centers,  the  British  Parliament 
amended  its  police  law  to  prohibit  constables  in  England  and 
Wales  from  joining  or  remaining  members  of  any  trade  union 
intended  to  "influence  the  pay,  pensions,  or  conditions  of 
service  of  any  police  force."  2  Canada  also,  by  a  cabinet 
order,  prohibited  government  emplo}^ees  from  joining  labor 
unions.  The  opposition  to  organization  among  civil  employ- 
ees is  especially  strong  in  France,  where  unionism  has  come 
to  be  regarded  as  a  real  danger,  due  largely  to  the  great  postal 
and  railway  strikes.3  At  the  same  time  the  feeling  of  the  em- 
ployees, as  expressed  in  the  international  conference  of  public 
employees  (Augus^,  1907),  is  that  the  employee,  even  on  public 
works,  has  a  right  to  organize  and  strike  as  a  means  of  obtain- 
ing desired  concessions  as  to  conditions  of  employment.4  In 
the  United  States,  in  1902,  the  President  by  executive  order, 
amended  in  1906,  forbade  all  government  employees  directly 
or  indirectly  to  solicit  an  increase  of  pay  or  to  influence  legis- 
lation in  their  behalf,  save  through  the  heads  of  departments 
in  which  they  served.  The  protest  of  the  unions  5  led  to  the 
act  of  1912,  adopted  as  a  rider  to  the  Post  Office  appropriation 


1  New  Statesman,  May  8,   1915,  special  supplement  on  "State  and 
Municipal  Enterprise,"  p.  22. 

2  9  and  10  George  5,  C.  46  (1919). 

3  An  account  of  the  postal  strike  and  its  cause  may  be  found  in  J.  H. 
Harley,  New  Social  Democracy,  1911,  pp.  122-143.     Also  see  Graham  Tay- 
lor, "  Unionizing  Government  Employees,"  The  Survey,  May  8, 1909,  p.  226. 

4  United  States  Department  of  Labor,  Bulletin  No.  88,  May.igio,  p.  867. 
6  See  American  Federationist,  January,  1915,  p.  28;  also  January,  1912, 

p.  36;  January,  1914,  p.  51. 


COLLECTIVE  BARGAINING  177 

act,1  which  permits  post  office  employees  to  petition  Congress, 
but  forbids  them  to  affiliate  with  any  outside  organization 
which  imposes  upon  them  an  obligation  to  strike,  or  purposes 
to  assist  them  in  any  strike  against  the  government.2  The 
executive  order  applies  only  to  the  activities  of  unions  of  pub- 
lic employees  influencing  Congress.  It  does  not  prevent  or- 
ganizations within  the  department  nor  collective  bargaining 
with  the  department.  Such  collective  bargaining  exists  in  a 
crude  form  in  departments  requiring  skilled  labor,  and,  in  the 
case  of  the  War  Department,  a  complete  scheme  of  arbitration 
has  been  worked  out  for  the  arsenal  at  Watertown,  Mass.,  for 
all  mechanical  employees.  This  provides  for  a  mediation 
board  of  an  equal  number  of  members  elected  by  the  employees 
and  officers  appointed  by  the  commanding  officer.  There  is  a 
supreme  mediation  board  at  Washington,  including  repre- 
sentatives of  the  national  unions  to  which  the  arsenal  workers 
belong,  and  officers  appointed  by  the  Chief  of  Ordnance. 
Appeal  lies  to  the  Secretary  of  War.3  A  similar  arrangement 
had  been  worked  out  in  the  street-cleaning  department  of 
New  York  in  i8g6.4  A  further  development  in  the  direction 
of  employees'  representation  in  the  administration  of  govern- 
ment enterprises  was  introduced  toward  the  end  of  1918  in 
the  federal  arsenal  at  Rock  Island,  111.  The  men  selected  an 
advisory  committee  to  cooperate  with  the  War  Department, 
were  allowed  to  choose  their  own  foremen,  and  had  a  voice  in 
fixing  piece-work  prices.  The  experiment  resulted,  according 
to  an  official  statement,  in  reduced  expenses,  increased  pro- 
duction, and  the  development  of  a  spirit  of  hearty  cooperation 
among  the  workers.5 

Other  governments  have  found  it  necessary  to  adopt  forms 
of  collective  bargaining  with  employees.  In  New  Zealand 
the  act  of  1908  6  provides  that  any  society  of  railway  employees 
may  register  and  become  officially  recognized  by  the  govern- 

1  Congressional  Record,  Vol.  XL VIII,  1912,  p.  11819. 

2  United  States,  Laws  1912,  C.  389,  Sec.  6. 

3  See  O.  O.  10225-582,  "Instructions  in  regard  to  Hearings  of  Griev- 
ances, issued  January  9,  1915,  by  the  Chief  of  Ordnance  to  the  Com- 
manding Officer,  Watertown  Arsenal." 

4  See  Commons,  Labor  and  Administration,  1913,  pp.  108-113. 

6  John  A.  Fitch,  "Manufacturing  for  Their  Government,"  The  Survey, 
September  13,  1919,  pp.  846-847. 
6  Bulletin  of  the  International  Labor  Office,  Vol.  Ill,  1908,  p.  312, 


178       PRINCIPLES  OF  LABOR  LEGISLATION 

ment.  It  may  then  enter  into  an  ' '  industrial  agreement ' '  with 
the  minister  of  railways  and,  by  registration,  the  articles  of 
agreement  are  brought  under  government  enforcement.  Any 
appeal  goes  before  the  court  of  arbitration,  consisting  of  a 
judge  and  representatives  of  the  government  and  employees. 
After  a  hearing  the  award  takes  the  form  of  a  new  compulsory 
agreement  or  an  enforcement  of  the  old.  There  are  appeal 
boards  for  postal  and  telegraph  employees,1  tramway  em- 
ployees,2 and  public-school  teachers;  and  any  ten  or  more 
teachers  may  organize  a  society,  which,  like  the  railway  or- 
ganization, registers  and  has  corporate  existence.3 

The  French  plan  for  railway  administration  does  not  recog- 
nize an  employees'  union  as  such,  but  goes  farther  than  the 
New  Zealand  scheme  in  arranging  for  cooperation  between 
government  and  employees.  Officials  and  workers  are  repre- 
sented on  the  various  committees  by  their  chosen  delegates. 
Thus,  in  the  councils  and  grades  committee  they  help  prepare 
reports  and  lists  of  premiums  and  promotions.  As  delegates 
they  are  part  of  the  council  of  inquiry  whose  duty  it  is  to 
express  an  opinion  on  all  important  questions  of  discipline 
submitted  by  the  general  manager.4  In  addition  there  are 
the  representative  district  councils,  which  act  as  buffers  be- 
tween the  railway  administration  and  the  employees,  make 
explanations,  and  administer  necessary  reprimands.  Officials 
no  longer  reprimand  workmen.  Above  the  district  councils  is 
the  Conseil  de  Reseau,'0  the  supreme  advisory  board  of  the 
whole  state  railway  system.  Of  the  twenty-one  members 
appointed  by  the  minister  of  public  works,  four  are  working 
employees.6 

In  the  Prussian  railway  system,  autocratic  as  it  is,  there 

lAct  of  October  24,  1894.  New  Zealand  Statutes,  1894,  post  and 
telegraph  department  act. 

2  An  act  to  amend  the  tramways  act,  1908,  New  Zealand  Statutes, 
1910,  p.  370. 

3  Act   of    October   31,    1895,    New   Zealand    Statutes,    1895.     School 
teachers  in  the  United  States  have  also  organized  and  affiliated  with 
a  central  federation.     (American  Federationist,  January,  1903,  p.  15.) 

4  Report  of  State  Railways  Administration  for  1909.     (New  Statesman, 
May  8,  1915,  special  supplement  on  "State  and  Municipal  Enterprise," 
P-  25.) 

6  Instituted  by  ministerial  decree  September  24,  1911.     (Ibid.,  p.  25.) 
6  New  Statesman,  May  8,  1915,  special  supplement  p.  25,  from  Emil 
Davies,  The  Collectivist  State  in  the  Making,  1914. 


COLLECTIVE  BARGAINING  179 

have  been  since  1892  a  series  of  advisory  committees  appointed 
by  the  minister  of  public  works,  whose  express  mission  it  is 
to  smooth  the  working  of  the  system  by  advising  on  all  pos- 
sible points  of  friction  between  management  and  operatives.1 
In  the  Swiss  administration  it  is  said  to  be  an  invariable  cus- 
tom for  the  general  secretary  of  the  railwaymen's  trade  union 
to  be  appointed  a  full  member  of  the  board  of  administration, 
the  supreme  governing  authority  of  the  railway  system.2 

The  foregoing  are  instances  of  formal  agreements  sanctioned 
by  law  or  established  by  administrative  order.  Far  more  ex- 
tensive than  these  formal  agreements  is  the  unofficial  recog- 
nition of  unions,  especially  in  England  and  the  United  States, 
where  the  head  of  the  department  deals  with  the  representa- 
tives of  the  union  and  then  issues  orders  conforming  to  the 
agreement  but  not  mentioning  the  union.  In  this  respect  the 
collective  bargain  is  similar  to  that  of  certain  large  railway  sys- 
tems in  the  United  States  which  nominally  do  not  recognize  the 
railroad  brotherhoods,  but  actually  issue  orders,  through  the  gen- 
eral manager,  to  which  the  unions  have  previously  consented. 

The  advantage  to  government  of  formal  recognition  of 
unions  consists  in  establishing  permanent  boards  'of  arbitra- 
tion through  which  all  grievances  take  their  regular  course. 
Without  such  boards  the  Unions,  through  political  influence, 
go  over  the  heads  of  the  departments  to  the  legislative  branch 
of  government.  This  is  proper  enough,  and,  indeed,  is  inev- 
itable under  universal  suffrage,  no  matter  what  restrictions 
the  administration  attempts  to  place  upon  them.  But,  with 
permanent  boards  of  arbitration,  practically  all  grievances  and 
demands  of  the  union  can  be  settled  within  the  department, 
leaving  to  the  legislature  (municipal,  state,  or  federal)  only 
the  general  policy  of  establishing  standards  of  hours  and 
wages  3  to  be  enforced  through  the  arbitration  boards. 

Outside  the  compulsory  systems  of  Australasia,  the  final 
appeal  from  arbitration  boards  lies  with  the  head  of  the 
department.  In  the  war  department  it  is  the  secretary  of 
war.  In  the  street-cleaning  department  it  is  the  commissioner. 

1  New  Statesman,  May  8,  1915,  special  supplement,  p.  25.     See  also  E.  S. 
Bradford,  "Prussian  Railway  Administration,"  Annals  of  the  American 
Academy,  Vol.  XXIX,  1907,  p.  310. 

2  New  Statesman,  May  8,  1915,  special  supplement,  p.  25. 

3  See  "The  Minimum  Wage,"  p.  198;  "Hours  of  Labor,"  pp.  285,  286. 


i8o       PRINCIPLES  OF  LABOR  LEGISLATION 

This  is  essential  in  any  voluntary  system  of  arbitration  in 
public  employment.  The  unions  retain  the  right  to  strike 
if  they  are  not  satisfied  with  the  arbitration,  and  therefore  the 
head  of  the  department  must  finally  decide  as  against  a 
strike,  in  case  arbitration  fails. 

Another  distinction  between  unions  of  public  employees  and 
those  that  deal  with  private  employers  is  the  attitude  toward 
the  closed  shop.  Government  cannot  discriminate  between 
citizens,  as  can  private  employers,  and  must  maintain  the 
open  shop.1  But,  since  government  is  not  forced  by  com- 
petition to  cut  wages  or  lengthen  hours,  the  unions  do  not 
need  the  protection  which  the  closed  shop  gives  them.  Yet, 
under  the  compulsory  systems  of  New  Zealand  and  New  South 
Wales,  a  preferential  union  shop  is  maintained,  which  ap- 
proaches the  closed  shop.2 

In  the  United  States  there  is  a  semblance  of  union  prefer- 
ence in  the  statutory  requirements  of  four  states 3  to  the 
effect  that  the  label  of  the  typographical  union  be  affixed  to  all 
public  printing.  However,  in  Maryland  this  law  seems  to  have 
been  disregarded,4  while  in  the  other  states  there  have  been 
no  court  decisions  supporting  the  law,  although  it  has  been 
observed.  In  at  least  eight  other  states  there  have  been  court 
decisions  adverse  to  discrimination  in  favor  of  organized  labor, 
in  regard  to  either  employment  on  public  works  or  the  use  of 
the  union  label  on  public  printing,5  on  the  ground  that  the  re- 
striction of  employment  thus  imposed  is  unconstitutional. 

1  See  decisions  below. 

2  New  Zealand,  act  of  1908,  Bulletin  of  the  International  Labor  Office, 
Vol.  Ill,  1908,  p.  312.     New  South  Wales,  industrial  arbitration  act, 
Acts  of  Parliament,  1911-1912,  No.  17. 

3  Maryland,  Public  General  Laws  1911,  Art.  78,  Sec.  9;   see  also  Laws 
1910,  C.  698,  Art.  78;   Montana,  Revised  Code  1907,  Sec.  254;   Nevada, 
Revised  Laws  1912,  Sec.  4309;  North  Dakota,  Laws  1919,  C.  173. 

4  Reports  of  state  officials  do  not  carry  the  label. 

6  Illinois:    Adams  v.  Brenan,  177  111.  194,  52  N.  E.  314  (1898) ;    Holden 


v.  Alton,  179  111.  318,  53  N.  E.  556  (1899);  Fiske  v.  People,  188  111.  206, 
58  N.  E.  985  (1900).  Iowa:  Miller  v.  City  of  Des  Moines,  143  la.  409, 
122  N.  W.  226  (1900).  Tennessee:  Marshal  &  Bruce  Company  v. 
Nashville,  109  Tenn.  495  (1902).  Michigan:  Lewis  v.  Detroit  Board  of 
Education,  139  Mich.  306  (1905).  Georgia:  Atlanta  v.  Stein,  in  Ga. 
789,  36  S.  E.  932  (1900).  Nebraska:  Wright  v.  Hoctor,  95  Xeb. 
342,  145  N.  W.  704  (1914).  Alabama:  Inge  v.  Board  of  Public  Works, 
135  Ala.  187  (1902).  Ohio:  Cleveland  v.  Clements  Bros.  Construction 
Co.,  67  Ohio  St.  197  (1902). 


COLLECTIVE  BARGAINING  181 

(2)  Cooperative  Employment 

An  official  recognition  of  organizations  of  public  employees 
is  found  in  the  cooperative  employment  system.  There  are 
two  principal  methods,  the  first  of  which  is  the  cooperative 
day-labor  system,  as  applied  in  New  Zealand.1  This  is  a  time 
and  piece  work  system  under  which  men  out  of  employment 
arrange  themselves  in  small  groups,  averaging  about  fourteen 
(the  groups  were  at  first,  and  occasionally  still  are,  larger), 
select  one  or  two  "headmen,"  and  enter  into  contracts  with 
the  government  for  sections  of  public  work  at  "schedule 
rates"  based  on  the  estimates  of  government  engineers  in 
charge  of  the  work.  The  plan  seems  to  have  worked  well  in 
New  Zealand,  but  not  so  well  in  New  South  Wales,  where  it 
has  been  confined  to  the  lowest  and  least  efficient  stratum  of 
workers.  Under  the  plan  the  government  is  responsible  for 
the  checking  up  and  actual  direction  of  the  work.  Evidently 
the  group  is  not  a  real  labor  union. 

The  second  form  is  found  principally  in  France  and  Italy,2 
where  workmen  organize  their  own  groups  and,  as  such,  con- 
tract for  government  work.  The  group  constitutes,  therefore, 
not  a  labor  union,  but  a  union  of  labor  contractors.  The 
officials  of  the  government  are  not  in  charge  of  the  work, 
but  they  turn  it  over  to  the  groups,  the  plan  being  a  modifica- 
tion of  the  competitive  contract  system  rather  than  a  variety 
of  direct  employment.  The  government  authorities  favor 
these  societies  in  the  placing  of  contracts,  and  the  result  has 
been  a  steady  and  appreciable  growth  in  their  number  and 
undertakings. 


1  Great  Britain,  Board  of  Trade,  Labour  Department,  Report  on  Co- 
operative Contracts  Given  out  by  Public  Authorities  to  Associations  of  Work- 
men, Parliamentary  Papers,  Vol.  LXXX,  1896. 

2  Victor  von  Borosini,  "The  Italian  Triple  Alliance  of  Labor,"  Ameri- 
can Journal  of  Sociology,  Vol.  XIX,  1913-1914,  p.  204  ff. 


CHAPTER  IV 
THE  MINIMUM  WAGE 

Minimum  wage  legislation  marks  a  new  stage  in  the  long 
line  of  attempts  to  equalize  the  power  of  employer  and  em- 
ployee in  making  the  wage  bargain.  In  contrast  with  con- 
ciliation and  arbitration,  either  voluntary  or  compulsory, 
which  take  place  only  after  a  demand  has  been  made  by  one 
party  and  refused  by  the  other,  minimum  wage  laws  seek 
to  regulate  the  wage  rate  before  any  dispute  over  the  terms 
of  the  wage  bargain  has  arisen.  Moreover,  interference  by 
the  state  between  the  parties  to  the  wage  bargain  through 
conciliation  or  arbitration  usually  implies  the  organization  of 
the  workers  and  the  existence  of  collective  bargaining.1  But 
in  any  modern  industrial  community  large  numbers  of  un- 
organized workers  are  found,  still  bargaining  individually,  em- 
ployed at  low  wages  and  apparently  unable  to  make  any 
effective  efforts  themselves  to  improve  their  condition.  If  they 
are  to  be  helped  toward  an  equality  in  bargaining  power  with 
the  employer,  the  state  must  take  the  initiative.  This  it  does 
by  setting  standards  below  which  wages  may  not  be  depressed 
— in  other  words,  by  passing  minimum  wage  legislation.2 

From  a  slightly  different  point  of  view  the  legal  minimum 
wage  fills  a  gap  in  our  code  of  laws  which  protect  the  employee 
by  regulating  the  conditions  of  employment.  Minimum  stand- 
ards for  safety  and  sanitation  have  been  enacted  in  many 
states  and  the  maximum  length  of  the  working  day  has  often 
been  fixed.  Such  safeguards  have  long  been  familiar  and  are 
generally  accepted  as  necessary  and  beneficial  to  the  health 
and  welfare  of  the  workers.  There  exists  also  a  considerable 


1  The  industrial  courts  of  Europe,  previously  described,  employ  con- 
ciliation in  both  collective  bargaining  and  individual  contracts. 

2  Modern  minimum  wage  legislation  is  not  comparable  to  the  mediaeval 
fixing  of  wages  by  justices  of  the  peace,  which  prescribed  not  a  minimum, 
but  the  actual  rates  to  be  paid.     See  "Coercion  by  Government,"  p.  152. 


THE  MINIMUM  WAGE  183 

group  of  laws  which  determine  certain  conditions  of  the  wage 
payment.  For  instance,  the  weekly  payment  of  wages  may 
be  required  or  payment  in  " store  orders"  may  be  forbidden, 
as  described  in  Chapter  II.  But  any  legislative  interfer- 
ence with  the  wage  rate  was  long  in  making  its  appearance, 
though  equally  essential  to  a  complete  code  of  legislative 
protection  for  the  workers.  Work  may  be  done  under  safe 
and  sanitary  conditions  for  hours  not  too  long,  and  payment 
of  wages  may  be  prompt  and  regular,  but  if  the  amount  re- 
ceived is  too  small  to  secure  the  necessaries  of  life  the  worker's 
health  and  welfare  are  menaced.  Therefore,  the  same  mo- 
tives which  have  caused  most  of  our  states  to  establish  mini- 
mum standards  to  guard  the  worker  against  unsafe  and 
unsanitary  conditions  have  caused  many  of  them  to  set  up 
standards  for  protection  against  the  evils  of  low  wages. 

But  whether  one  emphasizes  the  protection  to  health  and 
welfare  afforded  by  minimum  wage  legislation  or  its  equaliza- 
tion of  the  strength  of  the  parties  to  the  wage  bargain  it 
appears  not  as  a  novelty  in  legislation,  but  as  an  extension  of 
principles  whose  enactment  into  law  is  of  comparatively  long 
standing. 

i.  ECONOMIC  BASIS 

That  a  large  proportion  of  unskilled  workers  are  paid  wages 
far  too  low  for  decent  self-support  is  a  fact  confirmed  by  many 
wage  investigations  and  well  known  to  those  even  slightly 
familiar  with  present-day  industrial  conditions. 


(i)  Low  Wage  Scale 

Even  before  the  era  of  unprecedentedly  high  prices  ushered 
in  by  the  war,  it  was  the  consensus  of  expert  opinion  that  a 
weekly  wage  of  $8  or  more  was  necessary  under  urban  con- 
ditions for  the  maintenance  of  a  self-supporting  woman  in 
simple  decency  and  working  efficiency,  and  that  a  man  with 
a  wife  and  three  children  required  at  least  $15  to  $20  weekly 
for  their  proper  support.1  Yet  a  study  made  at  that  time  of 
women's  wages  in  the  United  States  concluded  that  75  per 

1  See  Howard  B.  Woolston,  "Wages  in  New  York,"  The  Survey, 
February  6,  1915,  p.  510. 


184       PRINCIPLES  OF  LABOR  LEGISLATION 

cent,  of  female  wage-earners  received  less  than  $8  weekly,  50 
per  cent,  less  than  $6,  and  15  per  cent,  less  than  $4,  and  that 
these  wages  were  further  reduced  approximately  20  per  cent, 
through  lost  time  and  unemployment.1  The  pay  of  unskilled 
male  workers  was  at  a  correspondingly  low  level.  Streightoff, 
in  his  discussion  of  American  standards  of  living,  estimated 
that  at  least  six  million  adult  men,  married  as  well  as  single, 
received  less  than  $600  a  year,  or  $12  a  week.2  More  intensive 
investigations  bore  out  these  figures.  The  United  States  Im- 
migration Commission  studied  a  large  number  of  typical 
households  representing  both  native  and  foreign-born  in  six- 
teen leading  industries.  More  than  half  of  the  male  heads 
of  families  earned  less  than  $500  a  year,  and  nearly  two-thirds 
less  than  $6oo.3  A  little  later  the  New  York  State  Factory 
Investigating  Commission  examined  the  pay-rolls  of  over 
2,000  stores  and  factories  during  the  fall,  winter,  and  spring 
of  1913-1914.  '  Out  of  57-,ooo  women  and  girls,  approximately 
34,000,  or  60  per  cent.,  earned  less  than  $8  in  a  typical  week. 
Seven  thousand  out  of  14,000  married  men,  or  50  per  cent., 
earned  less  than  $i5.4 

During  the  war  the  wage  level  was  materially  raised,  but 
owing  to  the  unprecedented  rise  in  prices  that  accompanied 
the  change  it  is  doubtful  whether  real  wages  were  materially 
altered  for  the  better,  except  perhaps  in  a  few  war  industries 
and  in  certain  occupations  covered  by  especially  liberal  gov- 
ernment wage  awards.  The  United  States  Bureau  of  Labor 
Statistics  estimated  that  the  cost  of  a  family's  living  increased 
80  per  cent,  in  the  chief  shipbuilding  centers  of  the  United 
States  between  June,  1914,  and  June,  1919,  and  70  per  cent, 
in  other  localities.  The  "National  Industrial  Conference 
Board,"  which  is  a  federation  of  several  large  employers' 
associations,  and  likely,  therefore,  to  be  conservative  in  its 
estimates,  put  the  increase  at  71  per  cent,  for  the  similar 


Charles  E.   Persons,    "Woman's  Work  and  Wages  in  the  United 
States,"  The  Quarterly  Journal  of  Economics,  February,  1915,  p.  232. 

2  Frank  H.  Streightoff,  Distribution  of  Incomes  in  the  United  States,  1912, 
P-  137- 

3  Arthur  N.  Holcombe,   "The  Legal  Minimum  Wage  in  the  United 
States,"  American  Economic  Review,  1912,  Vol.  II,  p.  33. 

4  Howard  B.  Woolston,  "Wages  in  New  York,"  The  Survey,  February 
6,  1915,  P-  510. 


THE  MINIMUM  WAGE  185 

period  of  June,  1914,  to  July,  1919.  The  National  War  Labor 
Board  found  in  June,  1918,  when  the  cost  of  living  had  risen  but 
55  per  cent,  above  pre-war  levels,  that  $1,380  a  year,  or  about 
$26.50  a  week,  was  necessary  for  a  family  of  five  to  maintain 
the  "minimum  of  subsistence"  in  the  large  eastern  cities. 
According  to  the  price  statistics  just  quoted  such  a  minimum 
would  have  risen  to  $33.92  weekly  in  the  summer  of  1919. 
On  a  similar  basis  the  minimum  "living  wage"  for  a  self- 
supporting  woman,  if  assumed  to  be  $8  a  week  in  1914,  was 
$14  in  1919.  It  was,  in  fact,  estimated  to  be  $15  by  the 
Consumers'  League  of  New  York  City  in  January,  1919,  and 
$16.50  by  the  District  of  Columbia  Minimum  Wage  Com- 
mission in  July  of  the  same  year. 

On  the  average,  wages  had  failed  to  reach  these  standards 
in  1919,  while  prices  showed  few  signs  of  falling,  in  spite  of  anti- 
"high  cost  of  living"  campaigns.  The  New  York  Industrial 
Commission,  securing  between  November,  1918,  and  January, 
1919,  figures  on  the  earnings  of  32,000  women  in  the  same 
industries  which  had  been  covered  by  the  Factory  Investigating 
Commission  in  1913-1914,  found  that  60  per  cent,  of  those  in 
factories  and  61  per  cent,  of  those  in  stores  received  less  than 
$14  a  week.  The  average  weekly  wage  for  both  sexes  in  a 
large  number  of  representative  New  York  State  factories  was 
but  $24.83  a  week  in  September,  1919,  while  in  eight  large 
industries  for  which  data  were  collected  by  the  National 
Industrial  Conference  Board,  the  average  weekly  wage  for 
male  workers  was  $24.24  in  September,  1918,  and  $23.37  in 
March,  1919. 

It  seems,  then,  no  exaggeration  to  say  that  the  majority 
of  low-skilled  industrial  workers  in  the  United  States  receive 
wages  too  small  for  decent  self-support.  This  fact  explains 
the  demand  for  minimum  wage  legislation  as  necessary  to 
social  welfare;  the  causes  for  the  low  scale  form  the  economic 
basis  which  determines  the  extent  to  which  the  demand  is 
practicable  and  the  legislative  standards  enforceable. 


(2)  Economic  Weakness  of  Low-Paid  Workers 

The  almost  entire  absence  of  strong  labor  organizations 
and  collective  bargaining  among  this  group  of  wage-earners 


i86       PRINCIPLES  OF  LABOR  LEGISLATION 

is  an  important  factor  in  producing  the  low  wage  scale. 
Many  are  women  who  are  often  members  of  a  family  group, 
unable  to  move  from  place  to  place  in  search  of  better  oppor- 
tunities, but  remaining  at  home  to  overcrowd  the  few  lines 
of  work  available  in  a  given  locality.  Then,  too,  the  ma- 
jority of  women  workers  are  young  and  inexperienced  and 
their  frequent  withdrawal  from  industry  on  marriage  makes 
them  look  upon  their  work  as  only  temporary.  On  the 
whole,  it  has  been  extremely  difficult  to  form  stable  unions 
among  women  workers.  Experience  both  in  England  and  in 
this  country  shows  that  organization  among  low-skilled  men 
workers  is  almost  equally  difficult.  In  the  absence  of  collec- 
tive agreements  it  has  sometimes  been  possible  to  compel  the 
workers  to  keep  their  wages  secret.  An  Oregon  department 
store,  for  instance,  required  each  applicant  for  employment 
to  sign  an  agreement  which  included  a  promise  to  "keep  my 
salary  confidential."  *  Such  secrecy  obviously  makes  it  easier 
to  depress  wage  scales.  In  the  circumstances  it  is  also  not 
surprising  that  among  this  group  of  workers  the  relation 
between  wages  and  productivity  is  not  traceable,  but  that 
"there  are  also  great  differences  in  wages  for  work  that  is 
apparently  the  same.  Some  firms  pay  constantly  25  per 
cent,  more  than  their  rivals  for  similar  operations."  2  In  the 
United  States  the  situation,  until  the  outbreak  of  the  Euro- 
pean war,  was  further  complicated  by  the  stream  of  immi- 
gration, which  furnished  an  abundant  supply  of  cheap  labor 
and  which  put  still  another  barrier,  in  the  shape  of  divergent 
language  and  customs,  in  the  way  of  union  organization. 

Another  reason  for  the  low  wage  scale,  largely  the  result 
of  the  first,  is  the  cutthroat  competition  of  the  workers 
for  work.  Among  the  unskilled,  unorganized  workers,  the 
wage  that  the  cheapest  laborer,  such  as  the  partially  sup- 
ported woman,  the  immigrant  with  low  standards  of  living  or 
the  workman  oppressed  by  extreme  need,  is  willing  to  take, 
very  largely  fixes  the  wage  level  for  the  whole  group. 


A  third  reason,  the  obverse  of  that  just  d^mssed,  is  the 


igrou] 
ft 


1  Report  of  the  Social  Welfare  Committee,  Consumers1  League  of  Oregon, 
1913,  p.  26. 

2  Fourth  Report  of  the   New    York   Factory  Investigating   Commission, 
1915,  "The  Confectionery  Industry,"  Vol.  II,  p.  312. 


THE  MINIMUM  WAGE  187 

absence  of  active  competition  among  employers  for  workers. 
With  a  plentiful  supply  of  the  lower  grades  of  labor  continually 
seeking  employment,  the  employer  over  long  periods  of  time 
has  felt  no  need  to  offer  inducement  in  the  form  of  higher 
remuneration  in  order  to  fill  his  shop. 

Moreover,  a  socially  undesirable  type  of  competition  be- 
tween employers  flourishes  when  the  bargaining  power  of 
employees  is  weak.  The  encouragement  of  superior  ability 
and  invention  has  always  been  pointed  out  as  one  of  the 
chief  advantages  gained  by  the  community  from  the  com- 
petitive system  of  production.  When  an  employer  can  hire 
workers  for  practically  his  own  price,  he  can  be  slack  and  in- 
efficient in  his  methods,  and  yet,  by  reducing  wages,  re- 
duce his  cost  of  production  to  the  level  of  his  more  able 
competitor. 

Minimum  wage  legislation,  therefore,  may  answer  the  de- 
mands of  social  policy  in  two  ways.  By  setting  a  barrier 
below  which  wages  may  not  fall,  it  lightens  the  pitiful  poverty 
and  prevents  the  degeneration  in  body  and  spirit  of  those 
forced  to  live  on  a  wage  too  small  to  supply  the  necessaries 
of  life.  Competition  among  them  no  longer  takes  the  form 
of  offering  to  work  for  lower  wages,  but  that  of  developing 
greater  efficiency.  At  the  same  time  employers  are  forced 
to  compete  in  efficiency  of  management,  thus  securing  for 
society  at  large  the  many  advantages  of  constantly  improved 
methods  of  production.  Minimum  wage  laws  attempt  neither 
to  destroy  competition  nor  to  fix  wages  by  law;  they  merely 
seek  to  set  the  lower  limits  to  both  in  the  interests  of  society 
as  a  whole. 

2.     HISTORICAL  DEVELOPMENT 
(i)  Australasia 

Australasia  is  the  birthplace  of  minimum  wage  legislation. 
Though  it  is  a  new  and  prosperous  country,  as  long  ago  as 
the  'eighties  the  sweating  system,  with  its  evils  of  low  wages, 
long  hours,  and  unsanitary  conditions,  was  discovered  to  be 
alarmingly  prevalent.  The  Age,  the  leading  Melbourne  news- 
paper, carried  on  a  crusade  against  these  conditions,  and  a 


i88       PRINCIPLES  OF  LABOR  LEGISLATION 

royal  commission  was  appointed  whose  report  in  1884  showed 
that  hours  were  excessive  and  that  wages  were  constantly 
reduced  by  the  miserable  rates  paid  to  home  workers.  Public 
indignation  was  aroused  until  finally  determined  efforts  were 
made  to  overcome  these  evils. 

In  1894  New  Zealand  passed  a  law  providing  for  the  com- 
pulsory arbitration  of  labor  disputes,  which,  while  primarily 
intended  to  preserve  industrial  peace,  may  also  be  used  for 
the  prevention  of  sweating.  The  district  conciliation  boards 
established  by  this  law  have  authority  to  fix  minimum  wages, 
and  if  sweated  workers  want  their  conditions  improved  they 
need  only  file  a  statement  of  their  claims  in  the  office  of  the 
nearest  conciliation  board.  By  means  of  this  machinery 
underpaid  workers,  men  more  often  than  women,  have  secured 
wage  increases. 

However,  the  first  Australasian  law  whose  main  purpose 
was  to  end  sweating  was  passed  by  Victoria  two  years  later, 
and  since  it  is  the  Victorian  method  which  Great  Britain 
and  the  United  States  have  adopted,  the  system  deserves 
consideration  at  length.  The  public  feeling  against  the 
sweating  system  in  Victoria  had  resulted  in  the  formation 
of  an  Anti-Sweating  League.  Largely  as  a  result  of  the 
league's  efforts  and  in  spite  of  bitter  opposition  from  the 
employers  under  the  leadership  of  the  Victorian  Chamber  of 
Manufactures,  Victoria  passed  the  first  minimum  wage  law 
in  1896.  Sir  Alexander  Peacock,  originator  of  the  system 
and  later  minister  of  labor  in  Victoria,  has  written:  "It 
was  alleged,  first,  that  all  work  would  be  driven  out  of  the 
country;  secondly,  that  only  the  best  workers  would  be  em- 
ployed; and  thirdly,  that  it  would  be  impossible  to  en- 
force such  provisions  at  all.  .  .  .  However,  the  government 
managed  to  carry  the  bill  and  the  wage-board  system  was 
inaugurated."  l 

The  law  required  that  representative  boards  fix  minimum 
wages  in  certain  industries  designated  by  the  legislature. 
Moreover,  being  frankly  an  experiment,  the  act  was  to  be  en- 
forced for  only  four  years.  Wage  boards  were  first  appointed 

1  M.  B.  Hammond,  "The  Minimum  Wage  in  Great  Britain  and  Aus- 
tralia." Annals  of  the  American  Academy  of  Political  and  Social  Science, 
July,  1913,  p.  28. 


THE  MINIMUM  WAGE  189 

in  the  six  especially  sweated  trades  of  boot-making  and 
baking,  which  employed -mostly  men;  clothing,  shirt-making, 
and  underclothing,  which  mostly  employed  women;  and  in 
furniture-making,  in  which  the  competition  of  Chinese  labor 
was  depressing  wages.  In  1900,  when  the  first  minimum 
wage  law  came  to  an  end,  the  government  brought  in  a  bill 
providing  for  the  extension  of  the  wage-board  system  to 
other  trades.  The  Victorian  Chamber  of  Manufactures  pro- 
tested violently,  urging,  and  with  good  reason,  that  the  gov- 
ernment's proposal  meant  the  extension  of  the  system  to 
trades  in  which  there  was  no  evidence  of  sweating.  How- 
ever, the  government  showed  that  it  had  received  a  number 
of  applications  from  employers,  asking,  for  the  appointment 
of  special  boards,  and  that  sweating  had  disappeared  in  the 
trades  in  which  boards  had  been  established.  Accordingly, 
the  bill  was  passed  and  an  extension  of  the  system  was  begun, 
which  continued  from  year  to  year  until  at  the  end  of  1916 
236  separate  boards  had  been  appointed,  fixing  minimum 
wage  rates  for  150,000  employees  in  a  state  whose  total 
population  is  less  than  a  million  and  a  half.  Minimum  wage 
rates  have  been  established  for  all  the  important  manufacturing 
occupations  in  the  cities  and  also  for  street  railways,  mer- 
cantile and  clerical  employments,  mining,  and  even  for  cer- 
tain agricultural  workers.  The  wage-board  system  is  no 
longer  regarded  as  an  emergency  measure  intended  to  secure 
a  living  wage  where  conditions  are  exceptionally  bad,  but  as 
a  satisfactory  method  of  fixing  the  standard  wage  in  any 
trade.  The  act  was  again  renewed  in  1903,  and  in  1904  was 
made  permanent.  While  the  scope  of  the  law  has  been  widely 
extended,  the  opposition  of  the  employers  has  decreased,  until 
in  April,  1912,  M.  B.  Hammond,  of  the  Ohio  Industrial  Com- 
mission, as  a  result  of  first-hand  investigations,  reported  that 
both  employers  and  employees  "are  now  practically  unani- 
mous in  saying  that  they  have  no  desire  to  return  to 
the  old  system  of  unrestricted  competition  in  the  purchase  of 
labor."  * 

South  Australia,  Queensland,  New  South  Wales,  and  Tas- 
mania, between  1900  and  1910,  also  adopted  minimum  wage 


1  Ibid.,  p.  35- 


igo       PRINCIPLES  OF  LABOR  LEGISLATION 

legislation,  but  in  close  relation  to  their  systems  of  compul- 
sory arbitration.1  In  South  Australia,  Queensland,  and  New 
South  Wales,  "arbitration  courts,"  with  coercive  powers  in 
settling  labor  disputes,  serve  as  courts  of  appeal  from  the 
decisions  of  minimum  wage  boards.  Tasmania  forbids  strikes 
wherever  the  award  of  a  wage  board  is  in  force.  From  the 
first  all  these  states  made  minimum  wage  legislation  appli- 
cable to  practically  the  whole  range  of  employment  and  not 
merely  to  sweated  trades. 

(2)  Great  Britain 

One  of  the  most  important  developments  in  the  English 
social  reform  movement  during  the  early  years  of  the  twentieth 
century  was  the  acceptance  of  minimum  wage  legislation  as  a 
practicable  policy.  While  twenty  years  ago  the  fixing  of 
minimum  wage  rates  by  law  was  apparently  outside  the  realm 
of  practical  politics,  it  is  advocated  in  Great  Britain  to-day 
not  only  by  the  Labor  Party,  but  also  by  the  Liberals  and  an 
influential  group  of  Unionists. 

Among  the  chief  reasons  for  this  development  of  public 
policy  was  the  increased  public  knowledge  of  conditions  among 
sweated  workers.  Investigations  showed  that  large  numbers 
of  low-skilled  unorganized  workers  were  receiving  less  than 
the  wage  necessary  for  the  maintenance  of  mere  physical 
efficiency.  Attempts  were  made  to  extend  trade  unionism 
among  them,  so  that  they  might  raise  their  wages  as  more 
skilled  workers  had  done,  by  collective  bargaining.  But  the 
formation  of  strong  unions  among  these  sweated  workers  was 
generally  found  to  be  impossible.  The  market  for  their  labor 
was  chronically  overstocked  and  the  struggle  for  bare  exist- 
ence was  too  severe  to  permit  the  development  of  stable 
organizations.  The  public  was  aroused  to  this  menace  of  in- 
sufficient wages,  which  its  victims  themselves  seemed  power- 
less to  remedy,  mainly  through  the  efforts  of  the  National 
Anti-Sweating  League,  which,  with  the  Labor  Party  and  cer- 
tain other  organizations,  vigorously  urged  the  adoption  of 
minimum  wage  legislation.  The  agitation  resulted  first  in  a 


1  See  "Development  of  Coercive  Intervention,"  pp,  162-166. 


THE  MINIMUM  WAGE  191 

parliamentary  inquiry  and  finally,  in  1909,  in  the  passage  of 
a  trade  boards  act,  modeled  on  the  Victorian  statute,  which 
went  into  effect  the  following  year. 

This  law  provided  that  wage  boards  may  be  established  by 
order  of  the  board  of  trade,  subject  to  ratification  by  Parlia- 
ment, for  all  employees  in  any  industry  in  which  the  prevail- 
ing rate  of  wages  is  "exceptionally  low  as  compared  with 
that  in  other  employments.'.' 1  The  first  four  trades  regu- 
lated were  tailoring,  paper  -  box  making,  the  finishing  of 
machine-made  lace,  and  the  manufacture  of  certain  kinds 
of  chain,  industries  which  employed  altogether  about  250,000 
operatives.  By  1913  the  successful  operation  of  the  law  was 
so  generally  recognized  that  the  formation  of  boards  was 
ordered  in  five  additional  trades:  sugar  confectionery  and 
food-preserving,  shirt-making,  certain  kinds  of  tailoring,  hol- 
low-ware making,  and  cotton  and  linen  embroidery,  employing 
nearly  150,000  more  workers.  The  trades  covered  employ 
chiefly  women,  and  before  regulation  the  wage  conditions  were 
flagrantly  bad. 

The  first  extension  of  the  wage-board  system  outside  the 
sweated  trades  was  also  exceptional,  but  for  an  altogether 
different  reason.  There  had  been  great  unrest  among  the 
coal  miners  during  the  winter  of  1911-1912,  culminating  in  a 
strike  in  the  spring  of  1912  which  paralyzed  industry.  One 
of  the  men's  principal  demands  was  a  flat  rate  weekly  mini- 
mum wage.  In  the  interests  of  industrial  peace  the  govern- 
ment was  forced  to  yield  to  the  principle  of  this  demand  by 
passing  a  measure  establishing  representative  district  boards 
to  fix  minimum  wages  and  other  working  conditions.  While 
the  operation  of  this  act  is  said  to  have  proved  less  satis- 
factory than  the  workings  of  the  trade  boards,  it  presents 
the  issue  of  wage  regulation  in  a  wider  form,  not  simply  as  a 
means  of  protecting  the  sweated  workers  at  the  very  bottom 
of  the  industrial  system,  but  as  a  supplement  to  voluntary 
collective  bargaining  for  a  comparatively  well  -  placed 
economic  group,  the  skilled  men  workers  in  a  well-organized 
trade. 

Up  to  the  outbreak  of  the  European  war,  then,  English 


1  Trade  boards  act,  9  Ed\v.  7,  C.  22,  Sec.  i  (2). 


i92       PRINCIPLES  OF  LABOR  LEGISLATION 

minimum  wage  legislation  had  reached  some  of  the  hardest 
pressed  and  some  of  the  most  fortunate  groups  of  industrial 
workers.  Throughout  the  war,  numerous  adjustments  were 
made  in  the  awards  for  the  nine  sweated  trades  which  had 
been  dealt  with  under  the  original  act,  but  the  increases 
hardly  kept  pace  with  the  ever-soaring  cost  of  living,  the 
boards  increasing  rates  only  "by  so  much  as  they  thought  the 
industries  concerned  would  be  able  to  support  after  the  war."  l 
But  in  the  latter  years  of  the  war,  two  important  extensions 
of  minimum  wage  legislation  were  made,  in  part  with  a  view 
to  stabilizing  wages  during  the  transition  from  war  to  peace, 
which  went  far  toward  repeating  in  England  the  line  of  de- 
velopment which  had  been  followed  in  Australia,  and  which 
transformed  the  trade  boards  from  a  special  device  for  remedy- 
ing unusually  bad  conditions  to  a  common  method  for  fixing 
wage-standards  for  all  wage-earners.  One  was  an  amend- 
ment to  the  trade  boards  act  which,  in  brief,  provided  that 
boards  to  fix  minimum  wages  might  be  formed  wherever 
Y  earnings  were  "unduly"  low,2  instead  of  "exceptionally"  low, 
as  under  the  original  law.  Before  the  war,  the  general  wage 
level  had  been  so  low  in  certain  groups  of  occupations  that  it 
was  often  difficult  to  prove  that  they  were  "exceptionally" 
so  in  cases  where  it  was  desired  to  take  action.  -Provision 
was  also  made  for  having  the  awards  come  into  force  more 
quickly  and  for  removing  various  administrative  difficulties 
which  had  been  experienced.  The  amending  act  likewise 
made  the  boards  a  possible  instrument  for  industrial  self- 
government  by  empowering  them  to  make  recommendations 
to  government  departments  concerning  improvements  in  in- 
dustrial conditions  in  their  trades  and  by  requiring  the  gov- 
ernment to  consult  them  on  industrial  questions  affecting  the 
workers  whom  they  represent.  Following  the  signing  of  the 
armistice  the  establishment  of  new  trade  boards  proceeded 
rapidly,  and  by  September,  1919,  they  were  in  operation  in 
six  additional  industries,3  in  process  of  organization  in  nine 


1  G.  D.  H.  and  M.  I.  Cole,  The  Regulation  of  Wages  during  and  after  the 
War,  p.  4. 

2  8  and  9  George  5,  C.  32  (1918). 

3  Boot  and  shoe  repairing;   brush  and  broom  making;   corset  making; 
laundries;  paper-box  making;  tobacco. 


THE  MINIMUM  WAGE  193 

more,1  and  the  first  steps  toward  forming  them  had  been 
taken  in  a  number  of  other  occupations. 

The  other  important  extension  of  the  minimum  wage  prin- 
ciple was  the  establishment  of  a  minimum  wage  for  agricult- 
ural laborers  in  connection  with  the  corn  production  act,  and 
the  further  provision  that  the  minimum  rate  fixed  by  the  law 
might  be  varied  for  different  localities  by  representative 
"agricultural  wages  boards."  The  main  purpose  of  the  act 
was  the  stimulation  of  grain  production  through  guaranteeing 
farmers  a  minimum  price  for  their  wheat  for  a  considerable 
term  of  years.  A  demand  was  then  made  that  wages  in  turn 
be  guaranteed.  Under  the  act  the  wage  boards  had,  by  the 
autumn  of  1919,  fixed  minimum  rates  for  men  and  women, 
boys  and  girls,  through  practically  the  whole  of  England  and 
Wales.  The  minima  for  adult  males  tended  to  be  higher  than 
the  rate  tentatively  fixed  by  the  law  itself.2 

A  sweeping  extension  of  the  minimum  wage  principle  was 
foreshadowed  by  the  introduction  of  a  government  bill  for 
the  fixing  of  minimum  time  rates  in  all  occupations,  which 
had  been  recommended  by  the  national  industrial  conference 
called  by  the  prime  minister  in  March,  1919,  and  which  was 
still  pending  in  Parliament  early  in  1920. 

(j)  Other  Countries  Abroad 

During  the  war  period  four  other  countries  and  four  Cana- 
dian provinces  passed  minimum  wage  legislation,  the  laws  in 
most  cases  applying  only  to  home  workers.  France  adopted 
the  principle  of  the  minimum  wage  in  1915  for  women  home 
workers  in  the  clothing  industry.3  The  law  provides  for  the 


waters;  fur;  hair,  bass  and  fiber;  hats,  caps,  and  millinery; 
jute,  rope,  and  twine;  retail  bespoke  tailoring;  wholesale  mantles  and 
costumes;  women's  dressmaking;  light  clothing. 

2  Under  the  munitions  of  war  acts  (1915,  1916,  1917)  extensive  govern- 
ment wage  fixing  was  carried  on  in  the  war  industries.     In  settling  trade 
disputes,  arbitration  boards  determined  wages  for  all  classes  of  workers. 
The  ministry  of  munitions  made  many  wage  awards  for  women  and 
unskilled  men.     The  former,  however,  should  be  classed  with  compul- 
sory arbitration,  and  in  the  latter  case  actual  rates,  and  not  minimum 
rates,  were  generally  set.     The  wages  (temporary  regulation)  act  main- 
tained war  wages  until  1920. 

3  United  States  Bureau  of  Labor  Statistics,  Monthly  Review,  December, 
1915,  PP.  36-41- 

13 


i94       PRINCIPLES  OF  LABOR  LEGISLATION 

establishment  of  a  representative  wage  board  in  each  of  the 
departments  into  which  the  country  is  divided,  which  is  to 
fix  minimum  wage  rates  for  all  female  home  workers  on  cloth- 
ing, hats,  shoes,  white  goods,  embroidery,  laces,  and  artificial 
flowers.  Boards  had  been  set  up  and  had  made  wage  awards 
in  twenty-two  of  the  eighty-seven  departments  by  May,  IQI6.1 
Toward  the  end  of  1916  several  strikes  for  increased  wages 
on  account  of  the  high  cost  of  living  took  place  in  munition 
factories.  To  meet  the  situation,  strikes  and  lockouts  were 
forbidden  and  a  system  of  arbitration  boards  was  set  up  by 
presidential  decree.  Among  the  duties  of  the  boards  was  the 
fixing  of  minimum  wage  rates  in  each  department.  It  was 
stipulated  that  the  minima  must  always  be  sufficient  to  per- 
mit the  average  worker  to  earn  a  living  wage.  By  August, 
1917,  rates  had  been  fixed  in  all  the  important  industrial  dis- 
tricts. Later,  as  the  cost  of  living  continued  to  rise,  the  true 
minimum  wage  principle  was  abandoned,  and  it  was  arranged 
that  the  basic  rates  should  remain  unchanged,  and  price 
increases  should  be  met  by  a  system  of  bonuses.2 
*  The  Norwegian  legislation  also  covers  home  workers  alone, 
and  is  of  a  particularly  tentative  character.  A  law  of  Febru- 
ary 15,  1918,  created  a  home  workers'  commission  or  board 
to  be  in  existence  for  five  years,  which  may  form  representa- 
tive trade  boards  for  the  special  industries  or  localities  to 
investigate  labor  conditions  in  all  places  where  home  work  is 
carried  on  and  to  fix  minimum  wages  in  home  work  in  the 
manufacture  of  clothing  and  articles  of  needlework.  Other 
occupations  may  be  added  by  the  government.  The  board  is 
to  make  recommendations  for  a  permanent  law.3  The  Argen- 
tine Republic  is  likewise  reported  to  have  enacted  a  law  in 
1918  providing  for  the  establishment  of  trade  boards  to  fix 
minimum  wage  rates  for  home  workers.4 

Unemployment   in   the   embroidery   industry,    due  to  the 

1  United  States  Bureau  of  Labor  Statistics,  Monthly  Review,  September, 
1916,  p.  77. 

2  Mary  Conyngton,  "Women  Munition  Workers  in  France,"  United 
States  Bureau  of  Labor  Statistics,  Monthly  Labor  Review,  July,   1918, 
p.  126. 

3  United  States  Bureau  of  Labor  Statistics,   Monthly  Labor  Review, 
September,  1918,  p.  680. 

4  Great  Britain,  Ministry  of  Labor,  Labour  Gazette,  February,  1919, 
P.  43- 


THE  MINIMUM  WAGE  195 

effects  of  the  war,  was  the  indirect  cause  for  the  fixing  of 
minimum  wage  rates  in  that  occupation  in  Switzerland.  In 
order  to  relieve  the  distress  of  the  employees  the  federal 
council,  in  December,  1916,  created  emergency  funds  from 
which  needy  employees  were  to  receive  payments,  the  cost  of 
which  was  to  be  assessed  on  the  manufacturers.  Some  em- 
ployers attempted  to  cover  the  tax  by  reducing  the  wages  of 
their  workers  and  the  council,  in  order  to  prevent  this,  issued 
an  order  fixing  minimum  rates  for  the  trade.1 

The  four  Canadian  provinces  of  British  Columbia,  Mani- 
toba, Quebec,  and  Saskatchewan,  all  passed  minimum  wage 
laws  in  1918  and  1919.  The  legislation  applies  to  women  and 
minors  in  all  industries,  though  in  Manitoba  only  the  city  is 
covered.  Numerous  wage  awards  were  in  force  under  these 
laws  at  the  beginning  of  1920,  except  in  Quebec,  where  the 
law  had  been  in  effect  only  a  few  months. 

(4)  The  United  States 

In  America  a  wide-spread  demand  for  minimum  wage  legis- 
lation dates  back  to  about  1910.  Two  factors  contributed 
to  the  rise  of  popular  sentiment  in  favor  of  the  legislation  at 
this  time.  One  was  the  increased  knowledge  of  cpnditions 
among  sweated  workers,  resulting  from  such  investigations 
as  that  of  the  federal  Bureau  of  Labor  on  Conditions  oj  Woman 
and  Child  Wage-Earners  in  the  United  States.  The  other  was 
the  successful  operation  of  the  British  trade  boards  act  under  \ 
conditions  not  unlike  those  in  our  own  country. 

In  public  employment,  to  be  sure,  wages  in  this  country 
had  for  several  years  been  regulated  both  by  state  laws  and 
by  city  ordinances.  Most  commonly  these  regulations  fix  the 
wage  rate  2  or  require  that  "prevailing  rates"  be  paid,  which 

1  United  States  Bureau  of  Labor  Statistics,  Monthly  Review,  Decem- 
ber, 1917,  p.  1 1 86. 

2  The  New  York  City  Board  of  Estimate  showed  a  broad  social  point 
of  view  in  its  efforts  in  1915  to  fix  a  just  wage  for  street  cleaners,  who 
are  among  the  lowest  paid  and  least  skilled  of  city  employees.     The  board 
proposed  fixing  their  pay  in  harmony  with  the  results  of  a  thorough  in- 
vestigation of  the  income  necessary  for  a  family  of  five  "living  in  accord- 
ance with  American  ideals."     Such  an  income  was  then  said  to  be  $70  a 
month  in  New  York  City.     Considering  the  increase  of  prices,  it  would 
have  become  $118  by  the  summer  of  1919.     While  the  wages  of  street 
cleaners  were  raised  this  standard  was  not  reached. 


i96       PRINCIPLES  OF  LABOR  LEGISLATION        !  \ 

are  usually  interpreted  as  union  rates  when  a  union  exists  in 
the  locality.  Several  statutes  and  ordinances,  however,  es- 
tablish a  true  minimum  wage.  For  example,  California  pro- 
vides that  the  minimum  wage  for  all  public  employees  except 
those  in  public  institutions  shall  be  at  least  $2  a  day.1  Massa- 
chusetts stipulates  that  "women  cleaners  and  scrubwomen" 
employed  by  Suffolk  County  must  be  paid  not  less  than  $8  a 
week.2  In  1913  Spokane,  Wash.,  established  by  popular 
vote  a  minimum  wage  of  $2.75  a  day  on  public  work,  and  on 
January  2,  1914,  the  state  supreme  court  sustained  this  or- 
dinance. But  in  this  country  until  the  last  few  years  wage 
rates  in  private  employment  were  seldom  considered  a  sub- 
ject of  possible  legal  regulation. 

There  were,  indeed,  sporadic  attempts  to  fix  minimum 
wage  standards  by  law.  Typical  of  these  is  a  bill  introduced 
in  the  Nebraska  legislature  in  February,  1909.  This  pro- 
vided that  "for  the  purpose  of  protecting  the  American  stand- 
ard of  living,  and  to  insure  to  all  who  labor  that  they  shall 
have  an  opportunity  to  improve  themselves,  to  educate  their 
children,  and  to  lay  by  a  sum  for  old  age,"  the  minimum  wage 
"for  all  adult  labor,  male  or  female,"  should  be  20  cents  by 
the  hour  or  $9  by  the  week,  with  25  cents  an  hour  for  over- 
time. Such  proposals,  however,  received  but  little  serious 
consideration. 

The  first  American  state  to  pass  a  minimum  wage  law  was 
Massachusetts.  An  investigating  commission  was  appointed 
there  in  1911,  and  its  report  resulted  in  legislation  in  1912. 
In  1913,  as  a  result  of  further  investigations,  eight  states  3 
followed  the  example  of  Massachusetts,  and  in  1915  two  more 
were  added,4  in  spite  of  the  withholding  of  the  decision  of  the 
United  States  Supreme  Court  on  the  Oregon  law.  Arizona 
enacted  legislation  in  1917  and  Colorado  revised  its  law,  while 
following  the  Supreme  Court's  long-awaited  decision,  Congress 
legislated  for  the  District  of  Columbia  in  1918,  and  North 
Dakota  and  Texas  passed  laws  in  1919.  The  Nebraska  law, 
under  which  no  action  had  ever  been  taken  on  the  ground 

1  California,  Code  1906,  No.  2894,  Sec.  I. 

2  Massachusetts,  Laws  1914,  C.  413. 

3  California,  Colorado,   Minnesota,  Nebraska,  Oregon,  Utah,  Wash- 
ington, Wisconsin.  «v     ,  *  Arkansas,  Kansas. 


THE  MINIMUM  WAGE   ^  197 

that  no  complaints  had  been  received,  was  repealed,  appar- 
ently by  accident,  in  codifying  the  laws  in  1919. 

Constitutional  amendments  specifically  allowing  minimum 
wage  legislation  were  passed  by  California  in  1914  for  women 
and  minors,  and,  contrary  to  American  precedent,  by  Ohio 
in  1912  for  all  classes  of  workers.  Ohio,  however,  had  in  1919 
taken  no  step  toward  legislation  except  to  authorize  the  state 
industrial  commission  to  investigate  working  conditions  among 
women  and  minors  alone.1 

In  addition  to  the  measure  enacted  by  Congress  establish- 
ing a  minimum  wage  law  for  women  and  children  in  the 
District  of  Columbia,  bills  have  been  introduced  in  that  body 
applying  to  employees  of  the  federal  government,  and  to  all 
workers  engaged  in  interstate  commerce,  but  these  proposals 
have  not  as  yet  been  given  much  attention. 

Thus  far  in  the  United  States  minimum  wage  legislation 
has  been  even  more  restricted  in  scope  than  at  its  first  enact-  / 
ment  in  Great  Britain  or  Australia.  It  has  been  passed  ta 
remedy  sweating,  not  among  all  workers  as  in  the  other 
countries,  but  only  among  women  and  children..  In  this  re- 
spect minimum  wage  laws  resemble  much  other  American 
labor  legislation  which  also  when  first  passed,  in  part  for  con- 
stitutional reasons,  in  part  perhaps  because  of  the  more  evi- 
dent inability  of  this  class  of  workers  to  protect  themselves, 
applied  only  to  women  and  minors.  Then,  too,  man}-  Ameri- 
can representatives  of  labor  oppose  minimum  wage  laws  for 
men,  feeling  that  men  workers  can  obtain  better  wages  by 
organization  without  the  aid  of  legislation.  In  addition  wage 
investigations  in  this  country  have  far  more  often  dealt  with 
women  than  with  men,  so  that  at  present  in  America  there 
exists  a  much  greater  body  of  evidence  to  show  inadequate 
wages  among  women  than  among  men  workers. 

That  a  change  is  taking  place  in  the  public  attitude  toward 
wa.ge  legislation  for  men,  however,  is  evidenced  by  the  serious 
consideration  given  to  a  bill  introduced  in  the  Wisconsin 


1  The  department  of  investigation  and  statistics  of  the  Ohio  Industrial 
Commission  had  issued  up  to  the  beginning  of  1920  two  reports  on  the 
subject — No.  i,  "Wages  and  Hours  of  Labor  of  Women  and  Girls  Em- 
ployed in  Mercantile  Establishments  in  Ohio  in  1913,"  and  No.  14,  "  Cost 
of  Living  of  Working  Women  in  Ohio." 


i98       PRINCIPLES  OF  LABOR  LEGISLATION 

legislature  in  1919,  which  would  have  extended  the  provisions 
of  the  state  minimum  wage  law  to  them.  The  bill  passed  the 
state  senate,  but  failed  in  the  lower  house. 

Minimum  wage  legislation  in  the  United  States,  then,  is 
expressly  permitted  by  two  state  constitutions  and  existed  at 
the  beginning  of  1920  in  thirteen  states  and  in  the  District  of 
Columbia.  It  is  regarded  almost  entirely  as  a  remedy  for  ex- 
ceptional conditions,  providing  only  a  bare  subsistence  wage 
for  those  considered  the  most  helpless  class  of  sweated  workers 
— namely,  women  and  children.  The  more  rigid  limitations 
of  written  constitutions,  the  labor  union  opposition,  and  the 
difficulties  of  administration,  are  factors  which  may  work 
against  such  an  extension  of  these  laws  in  the  United  States 
as  has  taken  place  in  some  countries. 

3.  STANDARDS 

The  purpose  of  minimum  wage  legislation  is  the  raising 
of  excessively  low  wages.  The  question  of  the  standards  of 
wage  awards  is  therefore  an  important  one.  How  adequate 
is  the  minimum  wage?  Is  it  always  a  "living  wage,"  and,  if 
so,  is  account  taken  only  of  the  bare  physical  necessities  of 
life,  or  is  allowance  also  made  for  the  requirements  of  mental 
and  moral  welfare?  Is  provision  made  for  the  support  of  a 
family  or  for  the  needs  of  the  individual  worker  alone?  Is 
there  any  consideration  of  probable  periods  of  unemploy- 
ment? On  what  basis  do  wage  boards  fix  the  pay  of  young, 
inexperienced,  and  handicapped  workers? 

(i)  Australia 

In  Australia,  statutory  definitions  of  the  minimum  standard 
exist  in  Western  Australia  and  New  South  Wales.  In  both 
cases  it  is  that  of  the  living  wage.  Since  1912  Western  Aus- 
tralia has  required  every  minimum  prescribed  to  be  "  sufficient 
to  enable  the  average  worker  to  whom  it  applies  to  live  in 
reasonable  comfort,  having  regard  to  any  domestic  obligations 
to  which  such  average  worker  would  ordinarily  be  subject."  l 


1  Western  Australia,  industrial  arbitration  act,  1912,  No.  57,  H  84. 


THE   MINIMUM  WAGE  199 

The  1918  amendment  to  the  New  South  Wales  arbitration 
act  establishes  a  board  of  trade,  one  of  whose  important  func- 
tions is  the  collection  of  facts  which  will  enable  the  arbitration 
court  to  determine  annually  a  general  minimum  living  wage 
for  men  and  for  women.1  Tasmania  and  Victoria  originally 
provided  that  the  "wages  paid  by  the  reputable  employer" 
should  be  taken  as  the  basis,  but  this  standard  proved  difficult 
to  administer,  and  the  clause  was  dropped. 

The  wage  determinations  of  the  Australian  states  have 
been  much  influenced  by  the  decisions  of  the  Commonwealth 
Arbitration  Court  which  settles  interstate  trade  disputes, 
and  which  early  set  as  the  minimum  for  unskilled  laborers  a 
sum  sufficient  to  cover  "the  normal  needs  of  the  average 
employee  regarded  as  a  human  being  living  in  a  civilized 
community."  In  other  words,  the  minimum  is  a  living  wage  > 
in  the  broader  sense  of  the  term,  not  a  mere  subsistence  wage. 
Above  this  "basic  wage,"  which  the  court  does  not  permit  to 
be  lowered  for  such  considerations  as  international  competi- 
tion or  the  lack  of  profitableness  of  the  enterprise,  may  be 
fixed  an  additional  "secondary  wage,"  "the  extra  payment 
to  be  made  for  trained  skill  or  other  exceptional  qualities 
necessary  for  an  employee  exercising  the  functions  required." 

"The  court  tends,"  said  its  presiding  officer,  "to  refuse  to 
make  differences  in  minimum  rates  except  for  clearly  marked 
distinctions  and  qualifications,  such  as  craftsmen's,  or  excep- 
tional responsibility,  or  special  physical  condition,  necessary 
for  the  function."  The  court  held  that  with  the  secondary 
wage  ' '  there  was  more  scope  for  compromise  or  arrangement ' ' 
than  with  the  basic  rate.  "At  the  same  time  it  has  been 
found  advisable,  except  in  extreme  circumstances,  to  diminish 
the  margin  between  the  man  of  skill  and  the  man  without 
skill.  .  .  .  When  the  court  has  increased  the  basic  wage  because 
•of  abnormal  increase  of  prices  during  the  war  it  has  not  usually 
increased  the  secondary  wage.  It  has  merely  added  the  old 
secondary  wage,  the  old  margin,  to  the  new  basic  wage." 

The  question  of  differing  wage  standards  for  men  and  for 
women  has  been  clearly  worked  out  in  Australia.  Since  a 
man  must  normally  maintain  a  family,  a  living  wage  for  male 


Commonwealth  Arbitration  Reports,  Vol.  II,  p.  3 


200       PRINCIPLES  OF  LABOR  LEGISLATION 

workers  must  cover  the  cost  of  such  maintenance;  a  woman 
ordinarily  supports  herself  alone,  so  that  the  minimum  for 
female  workers  is  fixed  on  that  basis.  "The  minimum  can- 
not be  based  on  exceptional  cases."  l  For  the  same  reason 
the  partial  support  of  some  women  workers  by  their  families 
is  not  considered  in  fixing  their  wages.  When  both  men  and 
women  are  employed  in  the  same  occupation,  the  wage  rate 
is  fixed  for  the  sex  usually  found  therein.  Allowance  is  also 
made  in  wage-fixing  for  time  lost  on  account  of  irregular 
employment,  and  for  any  special  expenses  connected  with 
the  occupation,  such  as  traveling  expenses  or  the  provision  of 
uniforms. 

(2)  Great  Britain 

In  England,  where  no  standard  is  set  by  the  law  itself,  the 
general  practice  is  "to  level  the  wage  for  the  whole  trade  in 
each  district  up  to  the  standard  of  the  best  employer  in  that 
district."  2  In  the  badly  sweated  trades  this  means  a  con- 
siderable increase  for  most  of  the  workers,  but  not  necessarily 
a  living  wage.  For  instance,  in  chain-making,  the  original 
award  gave  a  large  increase  in  hourly  rates  for  time  work, 
though  it  provided  only  5  cents  an  hour  for  women  workers 
or  approximately  $2.70  for  a  full  week's  work  of  fifty-four 
hours.3  More  recent  awards  in  less  low  paid  trades  seem  to 
be  on  a  somewhat  more  liberal  scale,  for  instance  that  grant- 
ing adult  women  in  the  tobacco  industry '$8.40  for  a  forty- 
eight-hour  week. 

(j)   The  United  States 

a.  Definition  of  the  Living  Wage.  •  Nearly  all  the  American 
laws  define  in  general  terms  the  principle  to  be  followed  in 
fixing  wages,  which  is  usually  that  of  a  living  wage.  In  a 
majority  of  the  laws  phrases  such  as  "the  necessary  cost  of 
proper  living"  and  "to  maintain  the  health  and  welfare"  are 
used.4  In  working  out  wage  standards  on  this  basis,  the 


1  Commonwealth  Arbitration  Reports,  Vol.  VI,  p.  71. 

2  John  A.  Hobson,  "The  State  and  the  Minimum  Wage  in  England," 
The  Surrey,  February  6,  1915,  p.  503. 

3  See  R.  H.  Tawney,  Minimum  Rates  in  the  Chain-Making  Industry, 
1914,  p.  39.  *  California,  Laws  1913,  C.  324. 


THE  MINIMUM  WAGE  201 

English  practice  of  leveling,  up  wages  to  those  paid  by  the 
best  employer  in  the  trade  in  a  given  district  is  obviously  not 
a  sufficient  guide.  Then,  too,  since  the  laws  apply  only  to 
women  and  minors,  relative  standards  for  the  two  sexes  need 
not  be  considered,  as  in  Australia.  One  finds,  however, 
America  on  the  whole  using  the  Australian  standard  for  women 
workers — namely,  the  cost  of  living  of  the  entirely  self-sup- 
porting woman.  American  employers  have  sometimes  asked 
that  the  help  received  by  many  women  workers  from  their 
families  be  taken  into  account  in  fixing  the  standard,  but  this 
request  has  been  denied. 

Earlier  orders  were  in  the  neighborhood  of  $8  and  $9  a  week. 
Following  the  war-time  price  increases,  the  state  of  Washing- 
ton was  the  first  to  break  away  from  the  traditionally  low 
levels  by  establishing,  in  September,  1918,  a  flat  rate  of  $13.20 
for  all  experienced  adult  women  for  the  period  of  the  war. 
Oregon  followed  closely  with  rates  of  $11.10  and  $11.61  in 
certain  industries.  The  District  of  Columbia  commission, 
making  provision  for  the  high  cost  of  living  in  the  city  of 
Washington,  fixed  minima  of  $15.50  in  the  printing  and  en- 
graving industry  and  $16.50 — the  highest  award  in  the  coun- 
try at  the  time — in  mercantile  establishments.  Massachu- 
setts followed  in  May,  1920,  with  an  order  for  a  rate  of  $15.25 
weekly  in  the  women's  clothing  industry.  California  in  1919 
awarded  $13 . 50  in  laundries  and  dry  cleaning  shops.  Wisconsin 
set  up  a  general  rate  of  2  2  cents  an  hour  for  experienced  adult 
workers,  and  Minnesota  changed  from  its  $8  and  $9  weekly 
rate  to  23  cents  an  hour. 

But  even  under  the  highest  wage  awards  strict  construction 
has  been  placed  by  most  wage  boards  upon  the  term  "neces- 
sary cost  of  living."  As  a  matter  of  fact,  the  budget,  like 
the  wage  rate  which  it  determines,  is  a  compromise.  The 
representatives  of  the  employees  present  their  budget  and 
their  proposal  for  a  rate  based  on  it;  the  representatives 
of  the  employers  do  likewise,  and  the  two  forces  contend 
until  they  come  to  some  agreement  on  a  rate.  The  budget  is 
then  worked  out  to,  fit  their  rate.  The  budgets  provided  for 
under  recent  orders,  even  the  most  liberal,  do  little  more  than 
secure  "not  a  wage  so  ...  women  can  live  well,  not  enough  to 
make  life  a  rich  and  welcome  experience,  but  just  enough  to 


202        PRINCIPLES  OF  LABOR  LEGISLATION 


secure  existence  amid  drudgery  in  gray  boarding-houses  and 
cheap  restaurants."  1  That  this  is  so  is  shown  by  an  exam- 
ination of  two  Massachusetts  budgets,  the  earlier  drawn  up 
by  the  wage  board  in  the  brush  industry  in  1914,  and  the 
latter  estimated  for  the  women's  clothing  worker  who  receives 
$15.25  a  week  under  the  order  of  May  7,  1920: 

Minimum  weekly  budget  for  a 
self-supporting  woman  in  Boston, 
1914. 

Board  and  lodging $5 . 50 

Clothing 1.35 

Laundry 20 

Doctor  and  dentist 

Church 10 

Vacation 19 

Recreation 09 

Newspapers   and  magazines     .08 

Education 

Savings 

Carfare 60 

Incidentals .  17 

Total..  ..$8.28 


Weekly  budget  allowed  Massa- 
chusetts women's  clothing  workers 
in  May,  1920. 

Board  and  lodging $  9.50 

Clothing 3.25 

Laundry 45 

Doctor  and  dentist 40 

Church 10 

Vacation 40 

Recreation 37 

Newspapers  and  magazines 

Education 1 8 

Savings 30 

Carfare 20 

Incidentals..,  .10 


Total $15-25 


b.  Wage  Losses  from  Unemployment.  In  fixing  standards 
for  minimum  wages,  the  question  of  regularity  of  employment 
is  of  great  importance.  Whether  or  not  a  worker  can  secure 
steady  employment  in  a  given  industry  is  the  factor  which 
determines  whether  the  "living  wage"  prescribed  in  an  award 
provides  a  "living  income"  throughout  the  year.  Until  re- 
cently the  problem  has  received  but  little  attention  in  America,2 
many  of  the  awards  thus  far  made  being  sufficient  only  for 
the  needs  of  the  current  week.  As  no  provision  is  made  for 
savings,  a  girl  who  receives  the  minimum  wage  must  run  into 
debt  or  deny  herself  necessaries  if  she  loses  her  position.  Yet 
many  low-paid  industries  whose  wage  rates  are  affected  by 
minimum  wage  awards  are  notably  irregular,  as  for  example 
candy-making  and  paper-box  making.  In  Massachusetts,  in 
Oregon,  and  in  Washington,  however,  wage  losses  from  unem- 
ployment have  been  given  some  attention  by  wage  boards. 

1  Walter  Lippmann,  "The  Campaign  against  Sweating,"  New  Repub- 
lic, March  27,  1915,  Supplement,  p.  8. 

2  See  Irene  Osgood  Andrews,  "The  Relation  of  Irregular  Employment 
to  the  Living  Wage  for  Women,"  in  Fourth  Report  of  the  New   York 
Factory  Investigating  Commission,  pp.  497-635;    also  in  American  Labor 
Legislation  Review,  June,  1915,  pp.  287-418. 


THE  MINIMUM  WAGE  203 

c.  Profits  of  the  Business.  An  important  question  likely  to 
arise  when  wage  standards  are  fixed  is  whether  or  not  the 
financial  condition  of  the  industry  should  be  taken  into  ac- 
count. Most  often  the  problem  comes  up  in  connection  with 
the  struggling  business  which  claims  it  cannot  survive  if  its 
workers  are  paid  a  living  wage.  The  issue  here  is  the  lowering 
of  the  standard  of  wages  in  order  to  secure  the  continued 
existence  of  such  an  industry.  But  such  a  concession  enables 
an  industry  to  flourish  without  paying  the  whole  cost  of 
maintenance  of  -those  whose  time  and  services  it  uses.  Its 
workers  must  be  partly  supported  by  the  earnings  of  others, 
who  are  thus  practically  subsidizing  the  underpaying  in- 
dustry. Such  a  trade  has  well  been  called  "parasitic,"  since 
its  existence  depends  on  the  bounty  of  others.  It  may  be 
that  other  members  of  the  woman's  family  (and  the  better- 
paying  occupations  in  which  they  are  employed)  make  up  the 
deficit  in  her  income;  it  may  be  that  society  as  a  whole  pays 
the  bill  for  the  physical  and  moral  deterioration  of  the 
workers  by  its  expenditures  for  hospitals,  charities,  and 
reformatories. 

Most  American  statutes,  through  the  stipulation  that  the 
minimum  wage  shall  cover  the  cost  of  living,  take  the  same 
stand.  In  Colorado  and  Massachusetts,  however,  "the  finan- 
cial condition  of  the  business"  is  to  be  considered  side  by  side 
with  the  cost  of  living.  In  Massachusetts,  in  the  temporary 
award  for  the  brush  industry,  this  resulted  in  fixing  a  mini- 
mum less  thanaliving  wage.  The  cost  of  living  for  a  self- 
supporting  woman  was  found  to  be  over  $8  weekly.1  But  on 
account  of  the  condition  of  the  business  the  commission  was 
obliged  to  make  the  hourly  rate  for  the  first  year  so  low  that 
women  could  earn  only  about  $7  weekly  unless  they  obtained 
more  than  the  usual  amount  of  work.2  In  retail  stores  also 
the  wage  board  believed  the  necessary  cost  of  living  to  be 
"as  much  as  and  probably  somewhat  above"  the  minimum 
recommended,  but  held  that  "the  schedule  of  wages  adopted 
is  as  high  as  the  retail  stores  of  the  state  will  be  able  to  pay 
until  industrial  and  business  conditions  shall  have  shown  a 


1  See  p.  202. 

2  Second  Annual  Report  of  the  Minimum  Wage  Commission  of  Massa- 
chusetts, p.  ii. 


204       PRINCIPLES  OF  LABOR  LEGISLATION 

marked  improvement."  l  A  consideration  of  the  prosperity 
of  the  industry  may  thus  retard  the  process  of  raising  the  wage 
to  the  necessary  minimum  or  even  at  times  overthrow  the 
whole  principle  of  the  living  wage. 

d.  Substandard  Workers.  Nearly  all  minimum  wage  laws 
permit  the  fixing  of  wages  for  young  workers  and  apprentices 
and  for  inexperienced  workers.  As  a  guide  in  fixing  these 
special  rates  most  American  statutes  contain  only  a  provision 
that  rates  for  children  and  apprentices  shall  be  suitable. 
The  usual  practice  is  to  name  the  rate  for  young  workers  and 
apprentices  in  the  award  with  the  regular  minimum  rate.  In 
some  cases  where  lower  rates  were  set  for  minors  and  learners, 
especially  in  trades  requiring  little  skill,  there  were  attempts 
to  substitute  young  girls  and  inexperienced  workers  for  adults. 
To  overcome  this  difficulty  it  was  found  necessary  to  specify 
the  length  of  the  apprenticeship  and  sometimes  also  the 
proportion  of  apprentices  allowed.  Learning  periods  specified 
in  the  orders  vary  from  three  weeks  in  the  canning  industry 
in  one  state  to  two  years  in  the  mercantile  industry  of  another 
state.  The  Wisconsin  wage  order  provides  for  a  six  months' 
learning  period  for  adult  employees.  For  the  first  three 
months  of  this  period  the  minimum  rate  of  pay  is  18  cents 
an  hour;  for  the  second  three  months,  20  cents  an  hour. 
Children  between  the  ages  of  fourteen  and  seventeen  may  be 
paid  1 6  cents  an  hour  for  the  first  three  months  and  18  cents 
an  hour  for  the  second  three  months,  provided  that  where  a 
child  is  doing  the  same  work  as  an  adult  the  child  shall  receive 
the  same  rate  as  the  adult.  •  In  the  retail  mercantile  trade  the 
Massachusetts  orders  provide  for  an  apprenticeship  period  of 
four  seasons  of  twelve  weeks  each,  during  which  time  learners 
are  to  be  paid  from  $4.50  to  $7.50  a  week. 

The  problem  of  piece  work  has  caused  considerable  diffi- 
culty. Employers  have  been  inclined  to  object  to  the  hourly 
rates  on  the  ground  that  their  employees  who  are  on  piece 
work  cannot  make  the  hourly  rate.  The  California  commis- 
sion has  worked  out  a  method  by  which  employers  may  test 
their  piece  rates,  by  providing  that  if  in  an  individual  estab- 

1  Massachusetts  Minimum  Wage  Commission,  Statement  and  Decree 
Concerning  t]ie  Wages  of  Women  in  Retail  Stores  in  Massachusetts,  1915, 
P.  3- 


THE  MINIMUM  WAGE  205 

lishment  the  piece  rates  do  nor  yield  to  at  least  66%  per 
cent,  of  the  female  employees  engaged  on  each  product  the 
minimum  wage,  which  in  this  case  is  28  cents  an  hour,  the 
piece  rates  must  be  raised  to  the  point  where  they  will  do  so. 
The  employment  of  slow  or  infirm  workers  at  lower  rates 
is  generally  permitted  only  by  special  license  from  the  com- 
mission. For  further  protection  against  the  abuse  of  the 
privilege,  certain  of  the  laws  specify  the  proportion  of  such 
workers  in  a  single  establishment  for  whom  licenses  may  be 
issued. 

4.  METHODS  OF  OPERATION 

There  are  two  types  of  minimum  wage  law.  One,  tne  ' 
"flat  rate"  law,  prescribing  the  legal  minimum  in  the  statute 
itself,  is  very  rare,  while  the  other  type,  under  which  a  board 
or  commission  after  proper  investigation  fixes  rates  for  one 
industry  or  group  of  industries  at  a  time,  includes  the  vast 
majority  of  these  laws  now  in  existence. 


(i)  Flat  Rate  Laws 

Laws  which  directly  fix  the  flat  minimum  rate  are  found 
only  in  certain  of  the  Australian  states,  and  in  Arizona,  Ar-  % 
kansas,  and  Utah.  In  Australia,  in  addition  to  the  system 
of  wage  boards,  laws  sometimes  establish  very  low  flat-rate 
minima,  frequently  of  not  more  than  48  or  72  cents  a  week, 
intended  principally  to  protect  children,  learners,  and  ap- 
prentices from  b£ing  put  to  work  without  wages  and  dismissed 
when  they  ask  for  pay.  In  America,  only  the  Arizona  law, 
with  a  $10  weekly  minimum,  and  the  Utah  statute,  which 
requires  a  daily  wage  of  75  cents  for  females  under  eighteen, 
90  cents  for  inexperienced  women,  and  $1.25  for  experienced 
women  over  that  age,  fix  universal  flat  rates.1  In  Arkansas 
a  flat  rate  of  $1.25  a  day  for  experienced  workers  and  $i  a 
day  for  females  having  less  than  six  months'  experience  is 
fixed  by  the  law,  but  the  commission  may,  after  investigation 

1  Arizona,  Laws  1917,  C.  38.  The  law  fails  to  specify  any  enforcing 
authority.  Utah,  Laws  1913,  C.  63.  Enforcement  is  placed  with  the 
commissioner  of  labor. 


206       PRINCIPLES  OF  LABOR  LEGISLATION 

and  public  hearing,  either  raise  or  lower  these  rates.1  This 
it  has  done  in  a  limited  number  of  instances.  This  method  of 
fixing  uniform  flat  rates  prevents  the  more  careful  adjustment 
for  various  industries  and  localities  which  is  elsewhere  under- 
taken by  wage  boards,  it  fails  to  secure  the  active  interest  of 
the  employers  and  employees  concerned,  and  it  makes  revisions 
difficult  during  a  period  of  rapidly  changing  prices  such  as 
occurred  between  1916  and  1919.  For  women  laundry 
workers  in  Little  Rock,  Ark.,  the  National  War  Labor  Board 
made  an  increase  of  $3.50  a  week  above  the  legal  minimum, 
saying  that  "This  law  was  passed  a  number  of  years  ago  under 
other  conditions  and  cannot  therefore  be  taken  as  a  fair  stand- 
ard under  the  war  conditions  now  existing."  The  flat-rate 
method  is  held  by  most  students  of  the  problem  to  be  dis- 
advantageous. 

.<    (2)  Wage  Board  Laws 

Representative  of  the  second  type  of  minimum  wage  laws, 
those  which  fix  rates  for  various  industries  through  wage 
boards,  are  the  laws  of  Great  Britain  and  of  most  Australian 
and  American  states.  In  Great  Britain,  under  the  amending 
act  of  19 18,2  the  minister  of  labor  is  authorized  to  appoint 
representative  "trade  boards"  to  fix  minimum  rates  in  any 
industry  "in  which,  on  account  of  defective  organization, 
wages  are  unduly  low,  or  there  is  reason  to  apprehend  an 
undue  fall  in  wages  when  the  special  war  conditions  have 
passed."  3  New  trades  can  be  brought  under  the  act  without 
parliamentary  confirmation,  which  was  formerly  necessary, 
though  Parliament  still  reserves  the  right  to  veto  such  action. 
The  boards  may  fix  minimum  time  or  piece  rates  which  may 
differ  for  different  classes  of  workers,  for  different  districts, 
for  different  processes,  or  for  any  combination  of  these  factors. 
Rates  may  be  arranged  to  come  into  operation  successively 
at  the  end  of  specified  periods,  and  variations  in  rates  may  be 
made,  to  remain  in  force  only  during  specified  periods.  In 

1  Arkansas,  Laws  1915,  No.  291. 

2  8  and  9  Geo.  5,  C.  32  (1918). 

3  Great  Britain,  Ministry  of  Labor,  Labour  Gazette,  August,  1918,  p. 
308. 


THE  MINIMUM  WAGE  207 

short,  under  the  new  act,  great  flexibility  in  rate-fixing  is 
secured. 

Awards  also  go  into  force  much  more  quickly  and  simply 
than  under  the  1909  law.  It  is  possible  for  a  rate  to  be 
brought  into  full  operation  within  three  months  after  it  has 
been  proposed,  in  contrast  to  nine  months  under  the  old 
conditions.  Special  exemptions  for  old  or  infirm  workers  are 
found  in  both  acts.// 

The  act  provides  for  the  appointment  of  inspectors  for  en- 
forcing the  payment  of  the  minimum  rates,  and  for  fines  for 
employers  not  paying  the  rate.  An  employee  who  has  not 
received  the  legal  minimum  rate  may  recover  the  balance 
due  him. 

In  Great  Britain  the  ministry  of  labor,  which  is  the  general 
administrative  body,  has  less  power  over  the  work  of  its  trade 
boards  than  have  American  administrative  commissions  over 
their  wage  boards.  A  British  trade  board  has  the  final  power 
over  rate-fixing.  An  American  wage  board  has  power  to 
recommend  rates  which  the  commission  may  declare  effective, 
or  modify,  or  reject  altogether.  In  some  states  the  com- 
mission may  fix  minimum  rates  without  the  intervention  of  a 
wage  board.  So  far  the  American  method  is  rather  a  regula- 
tion by  commissions  than  by  wage  boards  pure  and  simple. 

These  commissions  —  called  minimum  wage  commissions, 
industrial  welfare  commissions,  or  industrial  commissions — 
are  usually  unsalaried  and  composed  of  from  three  to  five 
persons,  one  of  whom  must  usually  be  a  woman,  appointed  by 
the  governor.  Their  jurisdiction  extends  over  females  and 
male  minors  up  to  eighteen  or  twenty-one  (fifteen  in  Texas), 
and  over  all  industries,  except  in  Colorado  and  Arkansas  where 
specified  lists  exist.  Arkansas,  also,  is  one  of  the  few  states 
specifically  exempting  certain  industries,  those  included  being 
cotton  factories,  fruit  and  vegetable  canning,  and  establish- 
ments employing  fewer  than  four  women  at  the  same  sort  of 
work.  The  District  of  Columbia  excepts  domestic  service, 
North  Dakota  domestic  service  and  farm  labor,  and  Texas 
adds  to  these  classes  nurses,  student  nurses,  and  students 
working  their  way  through  school.  The  commissions  are 
authorized  to  subpoena  witnesses,  administer  oaths,  and 
examine  books  and  papers,  and  employers  are  required  to 


2o8       PRINCIPLES  OF  LABOR  LEGISLATION 

keep  records  of  the  names,  addresses,  and  wages  of  women 
and  minor  employees.  If  the  commission  learns  by  investi- 
gation— which  is  sometimes  compulsory  on  petition — that 
wages  are  insufficient  to  maintain  the  specified  standard  of 
living,  it  must  proceed  either  to  determine  a  minimum  rate 
or  to  establish  a  subordinate  wage  board  for  the  industry. 

The  subordinate  board,  which  is  provided  for  in  all  the 
laws  except  that  of  Texas,  must  be  representative  of  employers, 
employees,  and  the  "public."  Unlike  the  foreign  acts,  which 
provide  for  the  nomination  of  representatives  by  employers 
and  employees,  American  laws  generally  leave  the  method  of 
selection  to  be  determined  by  the  commission.  The  com- 
mission may,  of  course,  ask  both  parties  to  elect,  and  this 
democratic  method  is  required  in  the  Minnesota  law  "so  far 
as  practicable."  While  in  theory  it  has  been  felt  desirable 
that  in  the  interests  of  democracy  employers  and  employees 
should  elect  their  representatives  to  the  wage  boards,  in  prac- 
tice it  has  proved  exceedingly  difficult  to  depend  entirely 
upon  election  for  securing  proper  representatives  for  un- 
organized workers.  Their  lack  of  acquaintance  and  the  fear 
of  losing  their  places  on  account  of  their  servipe  on  the  boards 
make  them  reluctant  to  serve,  and  timicL  in -conference.  For 
the  present  it  has  therefore  been  found  more  effective  to  leave 
the  enforcing  authority  free  to  select  representatives  from 
lists  submitted  by  the  employees  or  from  those  formerly  in 
the  trade  as  well  as  through  election.  Employers,  also,  have 
often  been  unwilling  to  elect  their  representatives.1 

The  subordinate  wage  board  may  use  the  investigations  of 
the  commission  in  determining  wage  rates  or  may  make 
further  investigations  of  its  own.  It  must  make  a  report  of 
its  work  with  recommendations  to  the  commission,  which 
may  accept  the  recommendations  in  whole  or  in  part  or  may 
refer  them  back  to  the  board  for  further  consideration  or  may 
convene  a  new  board.  When  the  report  of  the  wage  board 
has  been  accepted  by  the  commission  a  public  hearing  must 


1  In  Minnesota  the  commission  was  obliged  to  choose  representatives 
of  both  employers  and  employees  for  the  wage  boards,  and  to  select 
several  of  the  latter  from  outsiders.  See  John  A.  Ryan,  "The  Task  of 
Minimum  Wage  Boards  in  Minnesota,"  The  Survey,  November  14, 


1914,  p.  171. 


THE  MINIMUM  WAGE  209 

be  held;  if  after  public  consideration  no  change  is  deemed 
necessary  in  the  recommendations  they  are  promulgated  as 
orders  which  become  effective  in  thirty  or  sixty  days.  Nearly 
all  the  laws  grant  rehearings  on  petition  of  either  side.  Copies 
of  orders  issued  by  a  commission  must  in  most  cases  be  for- 
warded to  the  employer  concerned,  who  is  required  to  post 
them  in  a  conspicuous  place.  Minimum  wage  rates  may  apply 
either  to  time  or  to  piece  work,  and  in  Kansas,  Minnesota,  and 
Oregon  orders  may  be  issued  for  a  given  locality  or  area.  In 
Wisconsin  the  industrial  commission  has  power  to  classify 
industries  for  the  purpose  of  adjusting  wage  rates. 

The  commissions  are  authorized  to  make  special  exemptions 
for  women,  and  in  Wisconsin  for  minors  also,  who  are  physi- 
cally handicapped.  Special  licenses  may  be  issued  to  learn- 
ers and  apprentices  in  all  states  except  California,  Colorado, 
and  Texas,  and  in  Oregon  and  Washington  the  life  of  these 
licenses  may  be  limited.  In  Kansas,  minors  may  be  employed 
at  lower  rates  than  adults  only  by  special  license. 

The  interests  of  employers  and  employees  are  usually 
further  safeguarded  by  provisions  for  a  court  appeal  from 
the  commissions'  rulings,  the  procedure  and  the  subjects  for 
court  review  being  carefully  specified.  In  most  of  the  states 
rulings  may  be  set  aside  if  unreasonable  or  unlawful ;  in  North 
Dakota,  Oregon,  and  Washington  only  questions  of  law  may 
be  reviewed,  while  in  Massachusetts  an  employer  may  have 
an  award  set  aside  in  his  particular  case  by  filing  a  declara- 
tion under -oath  that  it  would  prevent  a  "reasonable  profit.'' 
In  most  instances,  the  findings  of  fact  by  the  commissions  are 
held  prima  facie  reasonable,  and  any  new  evidence  must  be 
referred  back  to  them  for  consideration. 

The  commissions,  except  in  Arkansas,  are  authorized  to 
enforce  their  own  rulings.  Most  of  the  states  provide  fines 
of  $10  to  $100  for  employers  who  fail  to  pay  the  minimum 
wage  or  who  violate  any  sections  of  the  act  or  any  commission 
ruling.  It  has  also  been  found  necessary  to  penalize  by  a 
fine  of  $25  to  $1,000  employers  who  discriminate  against 
employees  because  they  have  testified  in  wage  investigations 
or  served  on  wage  boards.  In  Massachusetts'T'nowever,  the 
commission  must  rely  on  the  compulsion  of  publicity  to 
enforce  its  wage  rulings.  In  that  state  employers  cannot  be 


2io       PRINCIPLES  OP  LABOR  LEGISLATION 

compelled  to  pay  the  minimum,  and  the  only  punishment  for 
those  paying  less  than  indicated  as  a  minimum  is  the  possi- 
bility of  the  publication  of  their  names  in  a  given  number  of 
newspapers  throughout  the  state.  Such  action  had  not  been 
taken  up  to  the  beginning  of  1920,  and  there  was  at  that  time 
a  growing  movement  in  the  state  to  make  the  law  mandatory. 
Certain  conscientious  employers  have  joined  it,  saying  that 
their  observance  of  the  awards  handicapped  them  in  compari- 
son with  their  less  scrupulous  competitors.  Publishers  re- 
fusing to  print  the  names  of  such  employers  are  liable  to  a 
fine  of  $100.  In  all  other  states,  employees  who  have  not 
been  paid  the  legal  minimum  rate  may  recover  the  unpaid 
balance  through  a  civil  suit,  which  has  proved  an  effective 
weapon  in  securing  observance  of  the  awards. 

In  America,  then,  the  establishment  of  minimum  wage 
rates  is  a  long  and  fairly  complicated  process.  First  there  is 
the  investigation  by  the  commission,  then  generally  further 
investigations  and  deliberation  by  a  representative  wage 
board,  next  public  hearings,  and  finally  a  possible  court  re- 
view before  the  minimum  rate  goes  into  effect. 

5.  RESULTS 

It  is  still  alleged  in  some  quarters  that  wages  are  fixed  by 
economic  laws,  any  legislative  interference  with  which  can 
result  only  in  disaster.  At  present  all  that  can  be  said  is 
that  experience  covering  twenty  years  in  Victoria  and  shorter 
periods  elsewhere  has  failed  to  confirm  these  dire  predictions. 
One  of  the  strongest  testimonials  on  the  value  of  minimum 
wage  legislation  is  found  in  the  extension  of  the  British  act  to 
prevent  dislocation  of  wages  after  the  war,  following  investi- 
gations of  its  operation  by  a  subcommittee  of  the  reconstruc- 
tion committee.  It  was  officially  stated  that,  "The  eight 
years'  experience  of  the  satisfactory  results  achieved  by  the 
trade  boards,  whose  activities  have  proved  of  benefit  not 
merely  to  the  workers,  but  to  all  sections  of  the  trades  which 
worked  under  them,  pointed  to  an  extension  of  the  trade 
boards  act,  1909,  as  the  best  means  of  meeting  the  situation."  l 

1  Great  Britain,  Ministry  of  Labor,  Labour  Gazette,  August,  1918, 
p.  308. 


THE  MINIMUM  WAGE  211 

(i)  Changes  in  Wage  Rates 

Perhaps  the  first  question  to  be  considered  is  whether  the 
laws  have  succeeded  in  raising  wage  rates.  Nearly  all  the 
evidence  so  far  collected  goes  to  show  that  they  have.  Some 
instances  of  failure  are  known.  In  Victoria,  for  instance,  it 
hasPproved  difficult  to  maintain  the  legal  rate  in  the  furniture 
trade  among  the  Chinese,  where  neither  employees  nor  em- 
ployers welcomed  the  establishment  of  the  wage  board,1 
and  in  England  the  custom  of  distributing  work  through 
middlemen,  and  the  depression  of  the  industry,  led  to  evasions 
in  the  lace-finishing  trade.2  Similar  evasions  have  been  sus- 
pected with  regard  to  homeworkers  in  the  British  tailoring 
industry,3  But  on  the  whole,  in  the  different  countries  and 
in  the  various  industries,  the  awards  of  the  wage  boards  have 
been  found  to  be  effective.  In  Victoria,  official  reports  show, 
average  wage  rates  increased  7.6  per  cent,  in  thirteen  board 
trades  in  a  period  of  about  five  years  before  awards  were 
made,  but  16.5  per  cent,  in  these  and  in  six  additional  board 
trades  during  a  similar  period  after  awards  were  made.  In 
six  trades  a  period  of  decline  in  wage  rates  became  a  period 
of  advance  after  the  making  of  awards.  During  the  whole 
time  wage-rate  advances  in  twelve  non-board  trades  amounted 
to  1 1. 6  per  cent.4  In  the  English  chain-making  industry  56.7 
per  cent,  of  the  male  mastermen  and  61.3  per  cent,  of  the 
journeymen  earned  less  than  $3.60  a  week  in  1911.  In  1913, 
after  the  award  by  the  trade  board,  only  1.3  per  cent,  of 
the  mastermen  and  0.7  per  cent,  of  the  journeymen  earned 
so  little.5  In  the  branches  of  the  English  tailoring  trade  cov- 
ered by  the  trade  board,  it  is  estimated  that  about  one-third 
of  the  women  and  between  one-fourth  and  one-fifth  of  the 


1M.  B.  Hammond,  "Where  Life  Is  More  Than  Meat,"  The  Survey, 
February  6,  1915,  p.  498. 

2  Sixth  Annual  Report  of  the  Anti-Sweating  League,  p.  6. 

3  See  R.  H.  Tawney,  Minimum  Rates  in  the  Tailoring  Industry,  1915, 
pp.  202-210. 

4  Ernest  Aves,  Report  to  the  Secretary  of  State  for  the  Home  Department 
on  the  Wages  Boards  and  Industrial   Conciliation  and  Arbitration  Acts 
of  Australia  and  New  Zealand,  1908,  p.  30. 

5  R.   H.  Tawney,   Minimum  Rates  in  the   Chain  -  Making  Industry, 
P-  83. 


212       PRINCIPLES  OF  LABOR  LEGISLATION 

men  received  increases  in  their  earnings.1  In  Washington 
the  industrial  welfare  commission  states  that  in  twenty-four 
stores,  before  the  minimum  wage  award,  1,758  women  re- 
ceived less  than  $10  weekly,  while  after  the  award  only  561 
women  received  less  than  $10  weekly,  the  number  of  workers 
remaining  approximately  the  same.2  A  report  of  the  United 
States  Bureau  of  Labor  Statistics  on  the  effect  of  minimum 
wage  determinations  in  Oregon  retail  stores  indicated  that 
average  weekly  earnings  of  women  were  8.6  per  cent,  higher 
in  the  face  of  a  business  depression  which  caused  an  8  per  cent, 
decrease  in  the  sales  of  these  stores.3  A  year  after  its  decree  in 
the  brush  industry,  the  Massachusetts  Minimum  Wage  Com- 
mission found  that  only  five,  or  i  per  cent.,  of  the  employees 
whose  wage  records  it  took  were  receiving  less  than  the  legal 
minimum.4 


(2)  Changes  in  Wages  above  the  Minimum 

It  is  frequently  declared  that  legal  minimum  wage  rates  tend 
to  become  maximum  wage  rates,  thus  injuring  those  whom 
they  are  expressly  designed  to  benefit.  This  does  not,  how- 
ever, appear  to  be  generally  the  case.  Both  the  chief  factory 
inspector  at  Melbourne,  Victoria,  and  the  secretary  of  the 
British  Board  of  Trade  declare  that  as  far  as  their  experience 
goes  current  wages  are  not  held  down  to  the  minimum  set 
by  law.5  The  former  official  even  declares  that  ' '  the  average 
wage  in  a  trade  is  invariably  higher  than  the  minimum 
wage."  In  one  Victorian  industry,  clothing,  after  an  award 
had  been  in  force  for  six  years,  wages  averaged  nearly  20  per 
cent,  higher  than  the  legal  minimum.6  The  establishing  of 
minimum  rates  in  the  clothing  trades  in  Great  Britain  led 
in  several  districts  to  trade  union  action  which  fixed  standard 

1  R.  H.  Tawney,  Minimum  Rales  in  the  Tailoring  Industry,  p.  95. 

2  First  Biennial  Report  of  the  Industrial  Welfare  Commission,  State  of 
Washington,  1915,  pp.  13,  79. 

3  United  States  Bureau  of  Labor  Statistics,  Bulletin  No.  176,  July, 
1915,  P.  33- 

4  Massachusetts  Minimum  Wage  Commission,  The  Effect  of  the  Mini- 
mum Wage  Decree  in  the  Brush  Industry  in  Massachusetts,  1915,  p.  5. 

6  Irene  Osgood  Andrews,  Minimum  Wage  Legislation,  pp.  62-63,  77~78- 
6  Henry  R.  Seager,  "Theory  of  the  Minimum  Wage,"  American  Labor 
Legislation  Review,  February,  1913,  p.  89. 


THE  MINIMUM  WAGE  213 

rates  considerably  above  the  legal  minimum.1  In  Portland, 
Ore.,  also,  the  United  States  Bureau  of  Labor  Statistics 
found  that  the  proportion  of  women  getting  more  than  the 
legal  minimum  increased  after  the  law  went  into  effect.2  In 
Wisconsin  many  employers  testified  that  over  half  of  the 
increase  in  their  pay-rolls  due  to  the  minimum  wage  order 
was  for  the  purpose  of  raising  the  wages  of  those  who  were 
already  above  the  minimum,  but  who  must  be  paid  a  higher 
rate  for  greater  efficiency. 

(j)  Effect  on  Unemployment 

It  is  further  argued  against  minimum  wage  laws  that  they 
force  workers  out  of  industry,  either  because  the  workers  are 
considered  by  the  employer  unprofitable  at  the  legal  rate,  or 
because  they  can  be  replaced  by  apprentices  or  by  specially 
licensed  workers  at  a  lower  rate,  or  perhaps  because  they  have 
been  active  on  the  wage  boards.  While  all  three  abuses  have 
probably  taken  place  at  various  times,  they  are  not  universal 
and  are  not  inherent  in  the  laws.  On  the  first  point,  the 
testimony  of  the  chief  factory  inspector  at  Melbourne,  pre- 
viously quoted,  is  that  "this  dislocation  [of  the  less  speedy 
workers]  is  not  serious,  and  that  as  a  rule  things  regulate 
themselves  fairly  satisfactorily."  3  The  Oregon  investigation 
made  by  the  United  States  Bureau  of  Labor  Statistics  showed 
that  experienced  women  workers  were  neither  thrown  out  of 
employment  by  the  operation  of  the  law  nor  supplanted  by 
men.4  In  sixteen  brush  factories  in  Massachusetts  the  total 
number  of  women  increased  from  332  to  334  between  1913, 
when  the  first  wage  investigation  was  made,  and  1915,  the  year 
following  the  minimum  wage  decree ;  the  number  of  men  de- 
creased from  472  to  4i7-5  The  system  of  issuing  special  per- 
mits for  less  efficient  workers  to  be  employed  at  lower  rates, 
which  is  provided  for  by  most  of  the  statutes,  is  undoubtedly 
helpful  in  making  the  adjustment.  On  the  other  hand,  the 


1  R.  H.  Tawney,  Minimum  Rates  in  the  Tailoring  Industry,  p.  96. 

2  United  States  Bureau  of  Labor  Statistics,  Bulletin  No.  176,  p.  33. 

3  Quoted  by  Irene  Osgood  Andrews,  Minimum  Wage  Legislation,  p.  63. 

4  United  States  Bureau  of  Labor  Statistics,  Bulletin  No.  176,  pp.  8,  9. 
6  Massachusetts  Minimum  Wage  Commission,  Bulletin  No.  7, 1 9 1 5,  p.  1 1 . 


2i4       PRINCIPLES  OP  LABOR  LEGISLATION 

displacement  of  adult  skilled  workers  by  apprentices  or  by 
defective  workers  at  a  lower  rate  can  be  checked  by  limiting 
the  percentage  of  employees  in  any  establishment  who  may 
work  at  such  lower  rates,  as  is  already  done  in  Minnesota 
with  regard  to  defectives.  The  matter  of  discrimination 
against  workers  who  serve  on  wage  boards  is  more  difficult 
to  handle,  although  most  American  laws  establish  penalties 
for  it.  This  discrimination  is  a  severe  handicap  to  securing 
a  proper  representation  of  the  employees  on  wage  boards. 
However,  this  is  no  serious  argument  against  minimum  wage 
legislation,  as  the  same  sort  of  discrimination  often  takes 
place  against  the  leaders  of  the  workers  in  any  concerted  move- 
ment for  higher  wages. 

(4)  Effect  on  Industry 

From  the  side  of  employers  it  is  frequently  declared  that 
minimum  wage  laws  will  put  them  under  such  a  handicap 
that  they  will  be  forced  to  move  to  freer  territory  or  be 
driven  out  of  industry  altogether.  Neither  seems  to  have 
taken  place  to  any  appreciable  extent.  The -officials  of  the 
Victorian  Chamber  of  Manufactures  and  of  the  Victorian 
Employers'  Association,  the  two  bodies  which  originally  led 
the  opposition  to  the  wage-board  system,  now  declare  that 
they  have  no  wish  to  see  the  system  abandoned.1  In  1903 
and  1904,  eleven  of  the  thirty-eight  special  boards  then  in  oper- 
ation in  that  country  were  established  upon  the  application 
of  employers.2  Only  a  single  instance  is  recorded  of  a  plant 
leaving  the  state  because  of  the  minimum  wage  law.3  In 
Great  Britain,  also,  in  the  industries  having  wage  boards, 
the  "employers  have  not  been  ruined  or  even  injured  in  their 

1  M.  B.  Hammond,  American  Labor  Legislation  Review,  February,  1913, 
p.  113. 

2  Victor  S.  Clark,  The  Labor  Movement  in  Australasia,  1907,  p.  147. 

8  "A  brush  manufacturer  from  England,  who  had  recently  come  to 
Victoria  to  establish  his  business,  was  so  enraged  at  the  idea  that  the 
wages  he  was  to  pay  were  to  be  regulated  by  law  that  he  moved  across 
Bass  Strait  to  Tasmania.  What  has  happened  to  him  since  Tasmania 
has  adopted  the  same  system  of  wage  regulation,  I  do  not  know." — M.  B. 
Hammond,  "The  Minimum  Wage  in  Great  Britain  and  Australia," 
Annals  of  the  American  Academy  of  Political  and  Social  Science,  July, 
P-  32- 


THE  MINIMUM  WAGE  215 

profits,"  *  and  the  board  of  trade  reports  that  it  is  "not 
aware  of  any  tendency  of  manufacturers  to  transfer  their 
business  to  foreign  countries,  or,  in  cases  where  lower  wage 
rates  have  been  fixed  for  Ireland  than  for  Great  Britain,  to 
transfer  their  business  from  Great  Britain  to  Ireland."  2  The 
actual  cost  of  the  necessary  changes  is,  after  all,  not  burden- 
some. In  Oregon  retail  stores  the  increased  labor  cost  was 
found  to  be  only  thsee  mills  on  each  dollar  of  sales.3  In  the 
Massachusetts  ^rush  industry  both  the  amount  of  capital 
invested  and  tn^value  of  the  product  increased  in  the  year 
following  the  decree.4 

(5)  Effect  on  Trade  Unionism 

Certain  trade  union  officials,  especially  in  the  United  States, 
have  feared  that  minimum  wage  legislation  would  hinder  the 
trade  union  movement  by  enabling  the  workers  to  secure 
wage  gains  without  the  aid  of  organization.  Their  fears  have 
not  proved  true.  Instead,  the  formation  of  wage  boards  has 
often  acted  as  a  stimulus  to  the  organization  of  unions,  through 
which  the  workers  have  in  some  cases  been  enabled  to  make 
further  gains  above  the  legal  minimum  rate.  This  is  the  testi- 
mony of  Australian  observers  and  of  the  British  Board  of 
Trade,  and  it  has  been  stated  that  in  the  experience  of  Massa- 
chusetts "the  conspicuotis  feature  is  the  impetus  given  to 
workers  in  the  candy  and  brush  trades  to  form  organizations 
where  none  had  been  before." 

(6)  Effect  on  Efficiency 

A  final  point  to  consider  is  whether  guaranteeing  to  every 
worker  a  legal  minimum  wage  reduces  incentive  and  output. 
The  preponderance  of  evidence  is  that  it  does  not,  but  that 
it  even  has  the  opposite  effect,  due  in  part  to  the  employer's 


1  John  A.  Hobson,  "The  State  and  the  Minimum  Wage  in  England," 
The  Survey,  February  6,  1915,  p.  503. 

2  Quoted  by  Irene  Osgood  Andrews,  Minimum  Wage  Legislation,  p.  78. 

3  United  States  Bureau  of  Labor  Statistics,  Bulletin  No.  176,  p.  10. 

4  Massachusetts  Minimum  Wage  Commission,  Bulletin  No.  7,  p.  14. 

5  Florence  Kelley,    "Status  of  [Minimum  Wage]   Legislation  in  the 
United  States,"  The  Survey,  February  6,  1915,  p.  489. 


216       PRINCIPLES  OF  LABOR  LEGISLATION 

insistence  on  greater  returns  for  increased  wages,  and  in  part 
to  the  workers'  spontaneous  response  to  the  improved  rate  of 
remuneration.1  Some  employers  in  Australia  feel  that  out- 
put has  been  reduced  in  recent  years,  but  they  ascribe  the  de- 
cline to  trade  union  policy  rather  than  to  wage  awards,  while 
the  employees  deny  the  charge  altogether.2  In  England  and 
in  the  United  States  it  is  believed  that  efficiency  has  gone  up 
rather  than  down.  Thus  the  British  Board  of  Trade  declares 
that  "there  are  indications  that  in  many  cases  the  efficiency 
of  the  workers  has  been  increased,"  3  and  the  Industrial  Wel- 
fare Commission  of  Washington  concludes  that  "the  whole 
standard  of  efficiency  and  discipline  has  been  raised."  4  In 
fact,  it  may  be  said  that  the  beneficial  results  of  minimum 
wage  legislation  have  been  largely  due  to  the  transfer  of  em- 
phasis from  competition  for  low  wages  to  efficiency  on  the 
part  of  both  employer  and  employee. 

Among  the  better-established  results  of  minimum  wage 
legislation,  therefore,  may  be  mentioned  (i)  that  it  has  raised 
wages;  (2)  that  minimum  wage  rates  do  not  in  general  tend 
to  become  maximum  rates;  (3)  that  it  does  not  necessarily 
force  workers  out  of  industry;  (4)  that  it  does  not  unduly 
handicap  employers;  (5)  that  it  does  not  undermine  trade 
union  organization;  and  (6)  that  it  does  not  decrease  efficiency. 


6.  CONSTITUTIONALITY 

The  constitutionality  of  minimum  wage  legislation  involves 
a  new  application  of  the  principle  of  the  police  power  of  the 
state.  While  it  is  an  accepted  constitutional  principle  that 


'"Output  per  head  has  increased,'  said  another  [firm];  'as  a  general 
rule  the  girls  work  better  if  they  are  paid  more.'  Indeed,  the  psychologi- 
cal effect  of  relatively  high  and  low  rates  on  the  workers  would  appear 
to  be  exactly  the  reverse  of  that  often  ascribed  to  them.  So  far  from 
low  rates  'making  them  work,'  they  often  produce  listlessness  and  de- 
spair. So  far  from  high  rates  'encouraging  slackness,'  they  stimulate  the 
workers  to  earn  as  much  as  possible  while  at  work  upon  them."  (R.  H. 
Tawney,  Minimum  Rates  in  the  Tailoring  Industry,  p.  133.) 

2M.  B.  Hammond,  "Where  Life  Is  More  Than  Meat,"  The  Survey 
February  6,  1915,  p.  502. 

3  Quoted  by  Irene  Osgood  Andrews,  Minimum  Wage  Legislation,  p.  78. 

4  First  Biennial  Report  of  the  Industrial  Welfare  Commission,  State  of 
Washington,  p.  13. 


THE  MINIMUM  WAGE  217 

the  employee's  right  freely  to  contract  for  the  disposition  of 
his  own  labor  cannot  be  limited  except  by  "due  process  of 
law,"  yet  the  poliee_4xm£er  of  the  state  can  restrict  the  free- 
dom of  contract  for  the  protection  or  betterment  of  the  pub- 
lic health,  morals,  peace,  and  welfare.  Enactments  of  the 
legislature  which  reasonably  tend  to  that  end  have  been 
commonly  sustained  by  the  courts.  Are  minimum  wage  laws 
a  legitimate  extension  of  this  power?  The  prevailing  trend 
of  judicial  opinion  is  that  they  are. 

The  courts  have  already  sanctioned  under  the  police  power 
principle  state  interference  with  the  wage  bargain  by  limiting 
working  hours  for  all  classes  of  employees,  and  by  regulating 
certain  conditions  of  the  wage  payment,  such  as  the  frequency 
of  payment,  store  orders,  or  payment  in  cash.1  Justification 
for  state  interference  to  fix  minimum  wage  rates  has  been 
sought  on  the  same  grounds  on  which  other  protective  legis- 
lation has  been  upheld. 

In  public  employment,  indeed,  it  has  been  frequently  de- 
cided that  the  legislature  may  rightfully  regulate  wage  rates 
as  well  as  other  conditions  of  labor  both  on  direct  work  and 
on  work  done  by  contractors.  On  work  done  by  contract 
the  wage  regulation  has  commonly  taken  the  form  of  stipu- 
lating that  the  current  rate  of  wages  shall  be  paid,  and  the 
constitutionality  of  this  form  of  regulation  is  now  well  estab- 
lished.2 In  1914,  moreover,  the  Washington  State  Supreme 
Court  sustained  a  more  drastic  wage  regulation  for  public 
works.  Spokane  had  fixed  by  ordinance  a  minimum  wage 
rate  of  $2.75  a  day  for  common  labor  on  all  public  improve- 
ments. Though  this  rate  was  higher  than  the  current  rate 
for  similar  work,  the  court  upheld  the  ordinance  even  when 


1  As  early  as  1859,  in  a  wage  exemption  case,  the  court  said:  "The  idea 
underlying  the  ultimately  developed  sentiment  of  the  people  upon  that 
subject  ...  is  that  the  citizen  is  an  essential  elementary  constituent  of 
the  state;   that  to  preserve  the  state  the  citizen  must  be  protected;   that 
to  live  he  must  have  the  means  of  living;   to  act  and  to  be  a  citizen  he 
must  be  free  to  act  and  to  have  somewhat  wherewith  to  act,  and  thus 
to  be  competent  to  the  performance  of  his  high  functions  as  such.     Hence 
it  would  seem,  as  no  doubt  it  was,  a  matter  of  the  gravest  state  policy 
to  invest  the  citizen  with,  and  to  secure  to  him,  those  essential  perquisites, 
without  which  the  state  could  not  demand  of  him  at  all  times  his  instant 
service  and  devoted  allegiance."     Maxwell  v.  Reed,  7  Wis.  582  (1859). 

2  See  Atkin  v.  Kansas,  191  U.  S.  207,  24  Sup.  Ct.  124  (1903). 


2i8       PRINCIPLES  OF  LABOR  LEGISLATION 

applied  to  work  done  by  contractors,  as  neither  unreasonable 
nor  in  violation  of  the  public  policy  of  the  state.1 

These  cases,  however,  were  based  on  the  proprietary  power 
of  government,  and  not  on  the  police  power.  The  legality 
of  state  regulation  of  wage  rates  in  private  employments  was 
less  certain.  It  was  not  until  the  Supreme  Court  of  the 
United  States,  by  an  even  division,  left  in  force  a  previous 
decision  of  the  Oregon  Supreme  Court  in  favor  of  the  state's 
minimum  wage  law  that  the  question  was  settled.2  One  jus- 
tice did  not  vote  because  he  had  taken  part  in  the  preparation 
of  the  brief  3  in  favor  of  the  act,  so  that  under  the  present 
composition  of  the  court  a  favorable  decision  on  any  subse- 
quent minimum  wage  case  seems  to  be  assured.  The  Oregon 
court  took  judicial  notice  of  the  "common  belief"  that  many 
women  are  employed  at  excessively  low  wages  and  that  health, 
morals,  and  the  public  welfare  are  injured  thereby.  Accord- 
ingly, the  law  was  held  constitutional  on  the  same  grounds 
on  which  laws  restricting  the  hours  of  labor  for  women  have 
been  sustained.  The  court  held  that  "Every  argument  put  for- 
ward to  sustain  the  maximum  hours  law  or  upon  which  it  was 
established  applies  equally  in  favor  of  the  constitutionality  of 
the  minimum  wage  law  as  also  within  the  police  power  of  the 
state  and  as  a  regulation  tending  to  guard  the  public  morals 
and  the  public  health."  4 

In  answer  to  the  argument  that  the  minimum  wage  law  was 
beyond  the  police  power  of  the  state,  the  court  said:  "Such 
legislation  must  be  taken  as  expressing  the  belief  of  the  legis- 
lature and  through  it  of  the  people.  We  think  we  should 
be  bound  by  the  judgment  of  the  legislature,  and  if  there  is  a 
necessity  for  this  act,  that  it  is  within  the  police  power  of  the 
state  to  provide  for  the  health,  morals,  and  welfare  of  women 
and  children  and  that  the  law  should  be  upheld  as  constitu- 
tional." 


1  Malette  v.  City  of  Spokane,  77  Wash.  205,  137  Pac.  496  (1913). 

2  Stettler  v.  O'Hara,  243  U.  S.  629,  37  Sup.  Ct.  475  (1917). 

3  The  brief  is  prepared  in  a  similar  way  to  those  used  in  the  defense  of 
women's  hour  laws,  and  contains  a  mass  of  evidence  on  legislation  pro- 
viding a  minimum  wage  for  women,  the  experience  on  which  such  legis- 
lation is  based,  and  citations  to  a  large  number  of  legal  cases  bearing  on 
the  subject. 

4  Stettler  v.  O'Hara,  69  Ore.  519,  139  Pac.  743  (1914). 


THE  MINIMUM  WAGE  219 

In  another  Oregon  case  1  the  objection  was  raised  that  the 
act  was  an  infringement  of  the  rights  guaranteed  by  the  four- 
teenth amendment  in  that  it  abridged  "the  privileges  or  im- 
munities of  citizens."  To  this  the  court  replied  that  "The 
right  to  labor  for  such  hours  and  at  such  wages  as  would 
reasonably  seem  to  be  detrimental  to  the  health  or  welfare  of 
the  community  is  not  a  privilege  or  immunity  of  any  citizen." 

The  decision  of  the  United  States  Supreme  Court  had  been 
followed,  up  to  the  beginning  of  1920,  by  favorable  verdicts  on 
minimum  wage  legislation  in  the  four  state  supreme  courts 
of  Arkansas,  Minnesota,  Washington,  and  Massachusetts. 
The  Arkansas  court,  in  upholding  the  state's  flat-rate  law, 
pointed  out  that  while  the  legislature  was  under  obligation 
not  to  fix  an  unreasonable  or  arbitrary  minimum  wage,  there 
was  no  more  appropriate  standard  than  the  normal  needs  of 
the  employee,  which  was  the  basis  upon  which  the  legislature 
had  proceeded.2  In  sustaining  the  Massachusetts  law,  the 
court  especially  noted  the  fact  that  it  was  not  compulsory, 
and  reserved  opinion  as  to  the  legality  of  a  compulsory  law.3 
The  Minnesota  and  Washington  cases  turned  on  the  police 
power  question,  as  had  those  in  Oregon.4 

One  more  minimum  wage  case  was  pending  at  the  beginning 
of  1920.  When  the  Minnesota  commission  issued  its  1918  order 
of  23  cents  an  hour  for  experienced  women  workers,  injunc- 
tion proceedings  were  immediately  started  against  the  order 
on  the  ground  that  it  was  arbitrary,  not  based  on  facts  con- 
cerning wages  and  the  cost  of  living  obtained  through  inves- 
tigation as  required  by  law,  and  that  it  was  a  flat  rate  fixed 
without  regard  to  differences  in  occupations  and  localities. 

Whatever  may  be  the  outcome  of  this  case,  it  seems  fairly 
safe  to  say  that  the  idea  of  a  living  wage  for  all  workers  has 
become  a  popular  one.  Our  minimum  wage  laws  have  at 
least  done  this — they  have  called  the  attention  of  employers, 
employees,  and  the  public  to  some  of  the  strange  and  unrea- 
sonable inconsistencies  and  discrepancies  which  exist  in  the 


1  Simpson  v.  O'Hara,  70  Oregon  261,  141  Pac.  158  (1914). 

2  State  v.  Crowe,  130  Ark.  272,  197  S.  W.  4  (1917).   ' 

3  Holcombe  v.  Creamer,  231  Mass.  99,  120  N.  E.  354  (1918). 

4  Williams  v.  Evans,  139  Minn.  32,  165  N.  W.  495  (1917);    Larsen  v. 
Rice,  100  Wash.  642,  171  Pac.  1037  (1918). 


220       PRINCIPLES  OF  LABOR  LEGISLATION 

wage  system.  They  have  been  one  of  the  most  efficacious 
means  of  bringing  to  light  facts  of  industry  which  are  indis- 
pensable for  the  intelligent  construction  of  economic  and 
legislative  programs.  Even  those  upon  whom  the  burden  of 
readjustment  has  temporarily  fallen  admit  the  undesirability 
of  the  present  chaotic,  anarchistic  methods  of  wage  payment. 
Whether  we  get  away  from  this  ugly  situation  by  means  of 
greater  equalization  of  power  through  organization  of  the 
workers,  or  by  means  of  public  interference  to  fix  a  minimum 
wage,  or  by  means  of  combinations  of  both  methods,  we  can 
feel  fairly  well  assured  that  the  tendency  is  toward  a  guaran- 
tee of  standards  of  living  below  which  no  worker  must  be 
allowed  to  fall.  Employers  complain  that  when  they  have 
turned  over  to  their  employees  a  sum  of  money  to  be  divided 
as  a  bonus,  the  employees  have  distributed  it  on  the  basis 
of  need  rather  than  efficiency.  Skilled  employees,  on  the 
other  hand,  might  complain  that  where  the  public  has  made 
awards,  the  tendency  has  been  to  make  the  rate  of  increase 
greater  for  the  lower  paid  and  less  skilled  workers  than  for 
the  higher  paid  employees.  In  other  words,  the  tendency  has 
been  toward  equalization,  through  bringing  up  the  low-paid 
employee  to  the  standards  of  the  higher.  Labor  organiza- 
tions are  themselves  adopting  this  policy  of  taking  in  the 
unskilled  and  looking  after  their  interests.  The  minimum 
wage  laws  are  at  present  in  line,  therefore,  with  a  general 
policy  and  practice  which  may  and  do  take  other  and  sup- 
plementary forms,  but  which  are  not  likely  to  become  less 
important  in  the  near  future. 


CHAPTER  V 
HOURS  OF  LABOR 

Of  the  many  lessons  which  the  world  war  taught  industry, 
none  is  more  clear-cut  than  that  long  hours  do  not  pay.  The 
experiences  of  the  war  strengthened  the  scientific  basis  for 
restriction  of  hours  and  gave  an  impetus  to  legislation.  Yet 
in  spite  of  a  general  tendency  in  the  United  States  toward  a 
shorter  workday — a  tendency  which  made  especially  rapid 
progress  from  1915  through  1918 — the  old  ideal  of  "eight 
hours  for  work,  eight  hours  for  rest,  eight  hours  for  what  you 
will"  has  not  yet  been  realized  by  the  majority  of  American 
wage-earners. 

In  1909,  of  the  0,015,046  wage-earners  enumerated  by  tne 
Census  of  Manufactures,  only  7.9  per  cent,  were  employed  in 
establishments  where  the  eight-hour  day  prevailed.1  "Pre- 
vailing hours"  for  three-quarters  of  them  were  from  fifty-four 
to  sixty  weekly.  But  no  fewer  than  344,011,  or  5.2  per  cent, 
of  the  whole  number,  worked  where  prevailing  hours  were 
between  sixty  and  seventy-two  weekly;  116,083  worked  in 
establishments  where  the  seventy-two-hour  week  prevailed, 
and  114,118  where  the  prevailing  hours  were  more  than 
seventy-two.  Out  of  the  eighty-six  principal  manufacturing 
industries  employing  more  than  10,000  wage-earners  in  1909, 
twenty  employed  over  10  per  cent,  of  their  workers  more 
than  sixty  hours  a  week.  Among  those  exacting  more  than 
seventy-two  hours  weekly  from  several  thousand  employees 
were  beet-sugar,  cement,  chemical,  glucose,  and  sugar  and 
molasses  factories,  coke-works,  gas  plants,  the  manufacture 
of  ice  and  lime,  petroleum  refineries,  blast-furnaces,  and 
rolling-mills.  Among  railroad  employees,  also,  continuous 
service  for  long  periods  has  been  very  common.  Records  of 
the  Interstate  Commerce  Commission  show  that  during  the 

1  See  Thirteenth  Census  of  the  United  States,  Vol.  VIII,  "Manufactures," 
pp.  306-313. 


222       PRINCIPLES  OF  LABOR  LEGISLATION 

year  ending  June  30,  1913,  261,332  railroad  men  were  reported 
as  on  duty  for  periods  exceeding  the  legal  limit  of  sixteen  hours, 
and  that  over  33,000  of  them  worked  more  than  twenty-one 
hours  continuously.1  Hours  of  labor  on  street  railways  also 
extend  over  excessive  periods  through  the  swing  run  system 
which  employs  a  man  a  few  hours  during  the  morning  rush 
and  then  lays  him  off  till  the  evening  rush.  During  the  in- 
terim he  must  be  on  call  and  usually  cannot  go  home,  so  that 
his  actual  working  day  extends  from  the  time  he  reports  for 
duty  in  the  morning  till  he  is  through  with  his  last  trip  at  night. 

Then,  too,  many  employees  are  working  seven  days  a  week. 
Investigations  show  that  much  of  the  present-day  continuous 
operation  of  industries  involves  seven  -  day  labor.  For 
instance,  in  Minnesota  in  1909,  98,558  men,  or  approximately 
14  per  cent,  of  the  gainfully  employed  males  in  that  state, 
were  working  every  day  in  the  week.2  In  New  York  in 
1910,  out  of  335,000  union  members  in  a  number  of  specified 
industries,  more  than  10  per  cent,  were  engaged  in  seven-day 
labor.3 

/  Worst  of  all,  many  establishments  which  operate  continu- 
ously, such  as  iron  and  steel  plants,  paper-mills,  and  glass  and 
chemical  works,  combine  the  twelve-hour  day  with  the  seven- 
day  week,  and  in  not  a  few  cases  require  their  employees  to 
alternate  weekly  or  fortnightly  between  day  and  night  shifts, 
working  twenty-four  hours  without  rest  when  the  change  is 
made.  So  glaring  are  the  evils  of  this  condition  that  under 
the  auspices  of  the  International  Association  for  Labor  Legis- 
lation a  special  conference  on  the  subject  was  held  in  London 
in  June,  1912,  and  resolutions  were  adopted  favoring  inter- 
national action  to  secure  eight-hour  shifts  in  continuous  in- 
'x.dus  tries.4 

To  be  sure,  beginning  in  the  spring  of  rf  19 15  an  active  move- 
ment for  the  eight-hour  workday  swept  the  country,  which, 
according  to  figures  compiled  by  the  United  States  Bureau 


1  Interstate  Commerce  Commission,  A  Statistical  Analysis  of  Carriers1 
Monthly  Hours  of  Service  Reports,  1913,  p.  10. 

2  Minnesota  Bureau  of  Labor,  Twelfth  Biennial  Report,  pp.  104-119. 

3  New  York  State  Department  of  Labor,  Bulletin  No.  45,  September, 
1910,  pp.  450,  451. 

4  Report  of  Special  Commission  on  Hours  of  Labor  in  Continuous  In- 
dustries, 1912,  pp.  16,  17 


HOURS  OF  LABOR  223 

of  Labor  Statistics,  reduced  to  eight  the  working  hours  of 
3,462,000  persons  between  January  i,  1915,  and  June  30, 
1919.  The  movement  began  in  Bridgeport,  Conn.,  in  1915, 
when  a  series  of  "eight-hour"  strikes  swept  through  that 
hive  of  war  industries,  not  ceasing  until  the  factories  of  the 
city  were  practically  on  an  eight-hour  basis.  It  spread  mainly 
among  machinists  in  1915  and  1916,  though  anthracite  coal 
workers  had  obtained  a  straight  and  railroad  employees  a 
basic  eight-hour  day  before  the  United  States  entered  the  war. 
Eight-hour  agitation  was  strengthened  during  the  war  by  the 
government's  attitude  and  by  the  requirement  of  eight  hours' 
work  on  government  contracts,  even  though  the  latter  was 
regularly  waived  and  overtime  at  higher  rates  permitted. 
"The  eight-hour  day  is  an  established  policy  of  the  country," 
said  the  President's  personal  mediation  commission,  and  the 
government's  chief  war-time  arbitration  agency,  the  National 
War  Labor  Board,  was  favorable  to  the  principle.  Important 
industries  going  on  an  eight-hour  basis  during  the  war  included 
the  garment  trades,  the  lumber  industry  in  the  Northwest, 
newsprint  paper,  shipyards,  and  slaughtering  and  meat-packing. 
Following  strikes  or  threats  of  strikes  the  eight-hour  day  was 
adopted  in  many  textile  mills  in  the  early  months  of  1919. 

Under  modern  industrial  conditions  excessive  hours  of  work 
break  down  health.  Even  with  short  hours  the  strain  of 
modern  industry,  with  its  speed,  its  piece  work,  its  division 
of  labor,  involving  the  monotonous  repetition  of  the  same 
process,  sometimes  even  of  the  same  movement,  is  a  heavy 
tax  on  the  worker.  But  with  the  eleven-  or  twelve-hour  day 
or  the  seven-day  week,  a  man  must  go  back  to  his  job  before  he 
has  had  sufficient  rest  to  recover  from  the  excessive  fatigue  of 
the  long  work  period,  and  a  progressive  decline  in  health  results. 
"In  my  judgment,"  said  a  former  official  of  a  large  steel  com- 
pany, "a  large  proportion  of  the  steel-workers,  who  from  early 
manhood  work  twelve  hours  a  day,  are  old  men  at  forty."  1 

Though  it  is  the  health  dangers  of  long  hours  which  are 
most  often  emphasized,  the  lack  of  leisure  for  family  life,  for 
recreation,  for  all  the  requirements  of  citizenship,  is  no  less 
an  evil.  It  should  not  be  forgotten  that  the  time  spent  in 

1  William  B.  Dickson,  former  vice-president,  United  States  Steel 
Corporation,  The  Survey,  January  3,  1914,  p.  376. 


224       PRINCIPLES  OF  LABOR  LEGISLATION 

going  and  coming  from  work  and  the  dinner  hour  often  add 
two  hours  to  the  length  of  the  workday  proper,  and  that  an 
eleven-hour  day  is  likely  to  mean  thirteen  hours  away  from 
home.  Said  a  Pittsburgh  steel-worker  of  the  results  of  such 
a  workday,  "Home  is  where  I  eat  and  sleep."  1  The  ultimate 
effects  of  such  hours  of  labor  were  thus  summed  up  by  the 
Supreme  Court  of  Georgia  in  upholding  a  Sunday  rest  law: 
"Without  specific  leisure  the  process  of  forming  character 
can  only  be  begun;  it  can  never  advance  or  be  completed; 
people  would  be  merely  machines  of  labor — nothing  more."  2 

Aside  from  their  weaker  physique,  the  "long  day  "  is  especial- 
ly onerous  for  women  workers  because  of  the  double  burden 
of  domestic  duties  and  wage  work  which  many  of  them  carry. 
Ordinarily  men  can  rest  when  their  day's  toil  is  over,  but 
there  are  few  working-girls  who  do  not  have  at  least  mending 
and  laundering  to  do  in  the  evenings,  and  many  married 
women  must  take  the  entire  care  of  their  homes  and  children 
before  and  after  work. 

Moreover,  long  hours  do  not  necessarily  make  for  the 
greatest  economy  and  efficiency  in  production.  It  is  some- 
times argued  that  if  hours  are  reduced  output  will  decline 
proportionately.  This  might  be  true  if  human  beings  were 
mere  machines  and  not  living  creatures  who  grow  tired.  But 
as  a  matter  of  fact,  as  the  English  official  investigations  of 
fatigue  among  munition  workers  once  more  demonstrated, 
the  law  of  diminishing  returns  operates  nowhere  more  strik- 
ingly than  in  regard  to  hours  of  labor.  Studies  of  output 
before  and  after  a  shortening  of  hours  show  that  where  the 
human  element  enters  into  production  hour  reductions  by 
no  means  necessarily  imply  a  decrease  in  output.  For  in- 
stance, as  a  result  of  study  of  the  output  of  munition  workers 
during  workdays  of  different  lengths,  the  British  Health  of 
Munition  Workers  Committee  concluded  "that  for  women 
engaged  in  moderately  heavy  lathe  work  a  fifty-hour  week 
yields  as  good  an  output  as  a  sixty-six-hour  week,  and  a  con- 
siderably better  one  than  a  seventy-five-hour  week."  3 

1  Quoted  by  John  A.  Fitch,  "The  Steel  Industry  and  the  Labor  Prob- 
lem," The  Survey,  March  6,  1909,  p.  1091. 

2  Hennington  r.  State,  90  Georgia  396,  17  S.  E.  1009  (1892). 

3  Great  Britain,  Ministry  of  Munitions,  Health  of  Munition  Workers 
Committee,  Final  Report,  1918,  p.  35. 


HOURS  OF  LABOR  225 

The  whole  history  of  this  committee  has  been  of  great 
educational  value  to  officials,  employers,  and  the  public,  in 
driving  home  the  fact  that  excessive  hours  do  not  pay.  Early 
in  the  war,  in  an  effort  to  increase  the  supply  of  munitions, 
the  legal  restrictions  on  the  hours  of  women  and  children  were 
relaxed,  and  night  and  Sunday  work  and  days  of  twelve  to 
fourteen  hours  became  common  for  all  classes  of  workers. 
Yet  the  supply  of  war  materials  failed  to  meet  demands,  and 
claims  that  the  employees  were  "slacking"  were  met  by 
countercharges  that  the  workers  were  being  driven  beyond 
human  endurance.  To  advise  on  the  situation  the  health  of 
munition  workers  committee  was  formed,  and  as  a  result  of 
its  recommendations,  as  a  means  of  improving  output,  Sunday 
work  was  practically  abolished,  hours  were  greatly  reduced, 
and  almost  all  the  pre-war  restrictions  on  the  hours  of  women 
and  children  were  reintroduced.  A  study  undertaken  during 
the  war  in  America  by  the  federal  Public  Health  Service  also 
showed  the  eight-hour  day  to  be  more  efficient  than  the 
ten-hour  day.1  Similar  evidence  has  been  gathered  for 
a  number  of  industries,  showing  the  beneficial  effect  of  short- 
ened hours  and  of  a  full  day's  rest  each  week.2  This  increase 
of  output  through  increased  efficiency  probably  largely  ex- 
plains why  wages  have  seldom  fallen,  but  have  frequently 
even  risen,  after  a  reduction  of  hours,  and  why  the  industries 
in  which  wages  are  highest  are  often  those  in  which  hours  are 
shortest.  Practical  experience,  therefore,  gives  weight  to  the 
old  eight-hour  league  slogan: 

Whether  you  work  by  the  piece  or  the  day, 
Decreasing  the  hours  increases  the  pay. 

Shorter  hours  likewise  tend  to  steady  employment.  When 
no  restrictions  are  placed  on  hours  of  work  in  a  seasonal  in- 
dustry, the  tendency  is  to  concentrate  the  work  in  a  brief 
busy  season  with  long  hours  of  overtime.  Hour  regulation, 
except  in  the  case  of  perishable  products  and  those  subject 


1  United  States  Public  Health  Service,  Public  Health  Bulletin  No.  106, 
"Comparison  of  an  Eight-Hour  Plant  and  a  Ten-Hour  Plant,"  Josephine 
Goldmark  and  .Mary  D.  Hopkins,  1920. 

2  See  American  Labor  Legislation  Review,  December,  1912,  pp.  524-527; 
Felix  Frankfurter  and  Josephine  Goldmark,  Bunting  v.  Oregon,  Brief  for 
Defendant  in  Error,  1915,  2  vol. 

15 


226       PRINCIPLES  OF  LABOR  LEGISLATION 

to  changes  in  fashion,  forces  a  more  even  distribution  of  the 
work  over  a  longer  period.  When  the  woman's  eight-hour  law 
was  in  force  in  Illinois  factory  inspectors  noted  "a  greater 
uniformity  of  work  and  rest ' '  as  one  of  its  results.1  The  thirty- 
hour  week  demanded  by  the  miners'  organization  in  the  strike 
of  1919  was  incorporated  in  their  program  for  the  purpose 
rather  of  regularizing  than  of  shortening  working  time.  In  cer- 
tain occupations  where  the  time  of  attendance  and  not  the 
speed  of  the  worker  is  the  essential  factor  (ticket-chopping 
and  street-car  work,  for  example),  the  reduction  of  excessive 
hours  increases  to  a  certain  extent  the  demand  for  labor. 

Aside  from  voluntary  reductions  by  individual  employers 
there  are  two  methods  by  which  the  desirable  goal  of  shorter 
daily  and  weekly  hours  has  been  reached — byjlabor  organjzgb 
tjon  and  by  labor_legisiatiqn.  Many  workers,  prominent 
among  whom  in  this  country  are  printers,  granite-cutters, 
garment-workers,  cigar-makers,  and  building-trades  workmen, 
have  gained  the  nine-  or  eight-hour  day  by  organization.  But 
the  present  prevalence  of  longer  hours  of  labor  in  the  United 
States  shows  that  the  unions  alone  have  not  been  everywhere 
adequate  to  the  task.  It  has  so  far  proved  difficult  to  form 
stable  labor  organizations  among  women  and  among  some 
classes  of  unskilled  men  workers.  In  some  cases,  too,  as  in 
the  Pittsburgh  steel  plants,  large-scale  business  has  used  its 
power  to  stamp  out  labor  organization.  After  a  century  of 
effort  probably  four-fifths  of  those  employed  in  trade,  trans- 
portation, and  manufacturing  are  still  unorganized,  and  in 
recent  years  there  has  been  a  growing  demand  for  the  protec- 
tion of  unorganized  workers  by  legislation. 

i.  MAXIMUM  HOURS 
(i)  Children 

The  first  legislative  regulation  of  the  hours  of  labor  in  this 
country  applied  to  children.  In  1842  a  petition  was  presented 
to  the  Massachusetts  legislature  by  certain  citizens  of  Fall 
River,  who  pointed  out 'that  the  existing  hours  of  labor  must 
be  permanently  injurious  to  the  health  of  children  and  detri- 

1  Report  of  the  Illinois  Factory  Inspectors,  1893,  p.  1 8. 


HOURS  OF  LABOR  227 

mental  to  their  education,  and  prayed  that  prohibitory  legis- 
lation be  enacted.  The  agitation  resulted  in  the  passage 
during  the  same  year  of  a  ten-hour  law  for  children  under 
twelve  years  of  age  in  manufacturing  establishments.1  In  the 
same  year,  also,  Connecticut  enacted  a  ten-hour  law  for  chil- 
dren under  fourteen  in  cotton  and  woolen  mills.2 

By  the  beginning  of  the  Civil  War  laws  limiting  the  hours 
of  children  in  manufacturing  establishments  to  ten"  a  day 
haJ  been  enacted  in  the  five  additional  states  of  New  Hamp- 
shire,3 Maine,4  Pennsylvania,5  New  Jersey,5  and  Ohio.7  The 
Connecticut  statute  of  1842  was,  however,  superseded  thirteen 
years  after  passage  by  a  new  law  which  set  back  the  limit  to 
eleven  hours,8  followed  within  a  year  by  an  amendment  which 
Still  further  lowered  the  standard  to  twelve  hours  a  day.9 
Like  the  first  Connecticut  law,  the  early  Pennsylvania  laws 
applied  only  to  textile  mills,  but  in  the  other  states  the  acts 
covered  manufacturing  in  general.  The  ages  of  the  children 
affected  varied  from  twelve  in  Massachusetts  to  twenty-one 
in  New  Jersey  and  Pennsylvania.  In  addition  to  the  states 
already  mentioned,  Rhode  Island  enacted  in  1853  an  eleven- 
hour  law  for  children  from  twelve  to  fifteen.10 

These  early  laws  were,  however,  to  a  great  extent  unenforced 
and  even  unenforceable.  The  still  frequent  provision,  for 
example,  that  only  violations  committed  "knowingly"  are 
punishable,  which,  to  quote  a  government  report,  has  "put 
a  premium  on  ignorance  and  .  .  .  served  to  balk  the  intent  of 
so  much  labor  legislation,"  u  originated  in  the  Massachusetts 
law  of  1842  and  was  copied  in  New  Jersey  and  Rhode  Island. 
In  New  Hampshire  children  under  fifteen  could  work  longer 
than  the  statutory  ten  hours  if  provided  with  the  "written 

1  Massachusetts,  Laws  1842,  C.  60. 

2  Connecticut,  Laws  1842,  C.  28. 

3  New  Hampshire,  Laws  1846,  C.  318.         4  Maine,  Laws  1848,  C.  83. 

5  Pennsylvania,  Laws  1848,  No.  227;  Laws  1849,  No.  415?  Laws  1855, 
No.  501. 

6  New  Jersey,  Laws  1851,  p.  321.  7  Ohio,  Laws  1852,  p.  187. 
8  Connecticut,  Laws  1855,  C.  45. 

&  Connecticut  Laws  1856,  C.  39. 

10  Rhode  Island,  Laws  1853,  p.  245. 

11  Report  on  the  Condition  of  Woman  and  Child  Wage- Earners  in  the 
United  States ,  Senate  Document  No.  645,  6ist  Congress  j  2nd  Session, 
1910,  Vol.  VI,  "The  Beginnings  of  Child  Labor  Legislation  in  Certain 
States,"  Elizabeth  Lewis  Otey,  p.  78. 


228       PRINCIPLES  OF  LABOR  LEGISLATION 

consent  of  tne  parent  or  guardian."  1  In  New  Jersey,  and  in 
Pennsylvania  under  the  earliest  laws,  a  child  could  not  be 
"holden  or  required"  to  work  more  than  ten  hours  a  day, 
but  if  the  child  worked  longer  the  employer,  in  order  to  escape 
all  responsibility,  needed  only  to  declare  that  the  extra  labor 
was  not  required,  but  voluntary, Ohio  even  went  so  far  as  to 
legitimatize  this  subtle  distinction  by  declaring  that  minors 
under  eighteen  might  not  be  "compelled,"  but  that  minors 
under  fourteen  might  not  be  "permitted,"  to  work  more  than 
ten  hours.  Only  in  two  states  were  any  provisions  made  for 
enforcement:  in  Connecticut  constables  and  grand  jurors 
were  to  inquire  after  violations,  and  in  Pennsylvania  con- 
stables could  take  action — but  only  after  complaint. 

It  is  interesting  to  note  that  the  early  hour  legislation  for 
children  resulted  almost  altogether  from  interest  in  education 
and  from  the  efforts  of  adult  male  workers  to  secure  such 
regulations  as  a  first  step  toward  obtaining  similar  laws  for 
themselves.  Sometimes,  also,  the  men  workers  undoubtedly 
believed  that  restrictions  on  the  hours  of  women  and  children 
would  result  in  decreased  employment  of  these  classes  of  wage- 
earners,  with  consequent  advantages  to  themselves.  It  was 
not  until  later  that  the  main  emphasis  came  to  be  put  on  the 
necessity  of  shortening  children's  hours  to  protect  the  health 
of  the  children. 

The  greatest  progress  in  legislation  regarding  the  hours  of 
labor  for  children  has  been  made  in  the  last  decade.  Begin- 
ning with  Illinois  in  1903,  the  eight-hour  standard  for  chil- 
dren under  sixteen  has  been  established  in  the  majority  of 
important  industrial  states.2  Eighteen  states  and  the  District 

1  Of  this  law  Horace  Greeley  said :    "  Why  should  '  the  consent  of  the  (?) 
parent  or  guardian  of  such  minor'  'be  allowed  to  overrule  the  demands 
of  Justice,  Humanity,  and  the  Public  weal'?  .  .  .  We  believe  nothing  less 
than  a  peremptory  prohibition  of  the  employment  of  Minors  for  more 
than  10  hours  per  day,  without  regard  to  the  consent  of  parents  or 
guardians,  will  effect  much,  if  anything.     Still,  we  are  willing  to  see 
a  trial  made  even  of  this  milk  and  water  enactment."     (New  York 
Tribune,  August  II,  1847.) 

2  This  standard  existed  in  1920  under  the  federal  law,  reinforced  by 
statutes  in  twenty-six  jurisdictions,  namely:    Arizona,  Arkansas,  Cali- 
fornia, Colorado,  District  of  Columbia,  Illinois,  Indiana,  Iowa,  Kansas, 

.Kentucky,  Maryland,  Massachusetts,  Minnesota,  Mississippi,  Missouri, 
Nebraska,  Nevada,  New  Jersey,  New  York,  North  Dakota,  Ohio,  Okla- 
homa, Tennessee,  Vermont,  Washington,  Wisconsin. 


HOURS  OF  LABOR  229 

of  Columbia  allow  no  exemptions  from  their  eight-hour  laws 
for  children;  but  in  Washington  the  law  applies  only  to  girls; 
in  Colorado  children  may  be  exempted  by  the  judge  of  the 
juvenile  court;  and  in  Indiana  children  may  be  legally  em- 
ployed nine  hours  a  day  on  affidavit  of  the  parent,  giving  them 
permission.  Of  the  remainder  of  the  states,  about  half  have 
nine-hour  laws  and  half  allow  work  for  ten  hours  a  day  or  more. 
Only  Montana,  which  forbids  factory  work  for  children  under 
sixteen,  and  West  Virginia,  do  not  regulate  hours.  Some  of 
the  southern  textile  states,  however,  still  allow  children  to 
work  legally  eleven  hours  a  day,  and  because  of  lack  of  en- 
forcement the  hours  in  some  of  these  states  are  reported  to 
be  even  longer. 

Legislation  for  shorter  hours  for  children  has  sometimes 
been  combined  with  that  for  women,  but  at  present,  except 
in  states  where  there  is  an  eight-hour  law  for  females,  the 
workday  is  nearly  always  shorter  for  children  than  for  adult 
women.  The  child  labor  laws,  however,  not  infrequently 
give  more  protection  to  young  working-girls  under  sixteen 
or  even  eighteen  or  twenty-one  than  to  working-boys  of  the 
same  ages.1  Hour  limitations  usually  apply  to  all  occupa- 
tions except  domestic  service,  agriculture,  and  frequently 
fruit  and  vegetable  canneries.  Occasionally  the  law  covers 
factories,  but  not  stores.  The  hours  during  which  children 
may  be  employed  are  further  regulated  by  the  very  common 
prohibition  of  night  work.2 

Opposition  from  employers  against  limitation  of  hours 
has  been  even  stronger  than  against  any  other  restriction  on 
child  employment,  the  common  argument  being  that  manu- 
facturers will  not  be  able  to  hold  their  own  against  com- 
petitors in  neighboring  states  where  longer  hours  are  per- 
mitted. With  regard  to  the  eight-hour  day,  especially,  an 
additional  argument  frequently  advanced  is  that  it  would  not 
be  practicable  to  employ  children  for  so  short  a  period  in 
a  plant  where  adults  work  a  longer  day.  After  eight-hour 

1  The  absence  of  any  hour  restriction  for  boys  along  with  an  eight- 
hour  law  for  all  females  in  Washington  has  already  been  noted.     Simi- 
larly in  Ohio  the  eight-hour  law  applies  to  girls  up  to  eighteen,  but  to 
boys  only  up  to  sixteen  years. 

2  See  "Night  Work,"  pp.  273-277,  for  a  fuller  discussion  of  these  pro- 
hibitions. 


23o       PRINCIPLES  OF  LABOR  LEGISLATION 

legislation  has  been  passed,  however,  it  has  usually  been  found 
that  the  industries  scon  adjusted  themselves  thereto.1  Finally, 
partly  in  order  to  meet  the  interstate  competition  objection, 
and  partly  in  the  interest  of  more  thorough  enforcement, 
the  trend  is  now  toward  federal  regulation,  through  the  taxing 
power  vested  in  Congress.2 

Since  all  minors  are  for  certain  purposes  wards  of  the  state, 
which  is  empowered  to  act  for  their  protection  when  neces- 
sary, the  constitutionality  of  state  laws  limiting  their  working 
hours  is  not  questioned.  As  a  minor  is  legally  incapable  of 
entering  into  a  free  contract,  such  laws  cannot  be  said  to 
abridge  without  "due  process  of  law"  his  freedom  to  dispose 
of  his  labor.  The  broad  power  possessed  by  the  state  to 
regulate  the  working  conditions  of  minors  was  thus  summed  up 
by  the  judge  in  the  case  of  People  v.  Ewer:  "So  far  as  such 
regulations  control  and  limit  the  powers  of  minors  to  contract 
for  labor,  there  never  has  been  and  never  can  be  any  question 
as  to  their  constitutionality."  3 

(2)  Women 

In  this  country  agitation  for  the  limitation  of  women's  hours 
followed  close  on  the  heels  of  the  movement  to  regulate  the 

1  In  order  to  ascertain  the  grounds  for  the  objection  that  children 
could  not  be  worked  shorter  hours  than  adults  in  the  same  factory,  a 
special  investigation  was  made  by  an  agent  of  the  National  Child  Labor 
Committee  in  three  states,  Ohio,  Illinois,  and  New  York,  where  an  eight- 
hour  law  for  children  had  been  in  operation  for  several  years.     The  re- 
port of  the  committee  reads  as  follows:    "Information  was  sought  in 
factories  representing  the  industries  in  which  the  largest  numbers  of 
children  were  employed.     It  was  found  that  children  were  employed 
eight  hours  at  the  same  kinds  of  work  at  which  they  had  been  employed 
before  the  law  went  into  effect,  while  the  adults  continued  to  work  for 
longer  hours.     With  practical  unanimity  employers  reported  that  they 
had  found  no  difficulty  in  readjusting  schedules  to  obey  the  law  and 
the  eight-hour  day  for  children  had  not  been  a  handicap  upon  business, 
and  no  cases  of  failure  or  removal  from  the  state  had  resulted.     On  the 
contrary,  the  industries  involved  have  steadily  grown."  (Bulletin  National 
Child  Labor  Committee,  Vol.  II,  No.  4,  February,  1914,  p.  44.) 

2  After  the  law  had  been  declared  unconstitutional  which  forbade  the 
shipment  in  interstate  commerce  of  goods  in  the  manufacture  of  which 
children  between  fourteen  and  sixteen  had  been  employed  at  night  or 
more  than  eight  hours  a  day,  a  10  per  cent,  tax  was  imposed  on  the  net 
profits  of  all  establishments  falling  below  these  standards.     See  "Ex- 
clusion of  Persons,"  p.  336. 

3  People  v.  Ewer,  141  N.  Y.  129,  36  N.  E.  4  (1894). 


HOURS  OP  LABOR  231 

hours  of  children.  As  early  as  the  'thirties  the  labor  press 
had  protested  against  the  long  hours  of  work,  and  strikes  for 
reduction  of  hours  had  been  called.1  Naturally  enough  the 
agitation  centered  around  the  textile  mills,  as  they  were  the 
earliest  large  factories  and  their  working  hours  were  twelve 
or  more  daily.  In  1834  a  delegate  discussing  the  condition 
of  women  in  factories  before  the  Trades'  Union  National  Con- 
vention in  Boston,  said  of  the  mill-owners:  "They  must  be 
forced  to  shut  their  mills  at  a  regular  hour;  there  must  be  a 
certain  time  over  which  they  shall  not  work,  that  all  the 
inmates  may  have  an  opportunity  to  rest  their  weary  limbs 
and  to  enjoy  free  and  wholesome  air."  2 

By  the  'forties,  when  many  humanitarian  movements  were 
rife,  the  ten -hour  cause  had  made  progress  and  legislative 
action  was  asked  for.  For  example,  in  1842,  1843,  and  1844 
petitions  asking  for  a  ten-hour  law  were  presented  to  the 
Massachusetts  legislature.3  This  early  movement  came  al- 
most entirely  from  the  ranks  of  the  workers  themselves,  who 
sought  legislation  limiting  hours  for  both  men  and  women. 
Organized  working-women  played  a  prominent  part  in  the 
campaign.  The  New  England  Workingmen's  Association,  an 
organization  of  wage-earners,  encouraged  by  a  few  public- 
spirited  citizens,  which  soon  became  the  New  England  Labor 
Reform  League,  was  active  in  the  agitation.  Closely  con- 
nected with  it  was  the  New  England  Female  Labor  Reform 
Association,  formed  in  January,  1845,  almost  all  of  whose 
members  were  women  workers  in  the  textile  mills  and  whose 
activities  centered  at  Lowell.  They  organized  meetings, 
wrote  for  the  labor  press,  and  petitioned  the  legislature  for 
the  ten-hour  day.  The  association  cooperated  with  other 
women  workers  and  started  branches  in  Fall  River,  Mass., 
Dover  and  Manchester,  N.  H.,  and  perhaps  other  places.  In 


1  Report  on  Condition  of  Woman  and  Child  Wage-Earners  in  the  United 
States,  Vol.  IX,    "History  of  Women  in  Industry,"  Helen  L.  Sumner, 
p.  67. 

2  National   Trades'    Union,    September    13,    1834,    p.    2.     Quoted   in 
Documentary  History  of  American  Industrial  Society,  John  R.  Commons 
and  Helen  L.  Sumner,  ed.,  Vol.  VI,  p.  219. 

3  Charles  E.  Persons,  "The  Early  History  of  Factory  Legislation   in 
Massachusetts,"  in  Labor  Laws  and  Their  Enforcement,  Susan  M.  Kings- 
bury,  ed.,  pp.  24-27. 


23 2       PRINCIPLES  OF  LABOR  LEGISLATION 

1845  the  women  textile  workers  of  Pittsburgh  were  unsuccess- 
ful in  a  strike  for  a  ten-hour  day,  but  were  told  by  their  em- 
ployers it  would  be  given  them  when  other  localities  also  re- 
duced their  hours.  Accordingly,  the  women  wrote  to  New 
England  for  help.  The  girls  of  Lowell  and  Manchester  re- 
sponded and  all  resolved  to  work  only  ten  hours  after  July 
4,  1846.  But  on  account  of  the  opposition  of  the  manu- 
facturers their  efforts  failed,  and  they  once  more  tried  to 
secure  legislation.  These  organized  women  workers  first 
succeeded  in  New  Hampshire,  where  "by  vigorous  personal 
efforts  they,  more  than  any  other  group,  secured  the  ten- 
hour  law  of  1 847 ,  the  first  of  its  kind  in  the  country. ' '  l  Similar 
acts  were  passed  in  Maine  and  in  Pennsylvania  in  1848,  in 
New  Jersey  and  in  Rhode  Island  in  i85i.2  Massachusetts 
passed  no  ten-hour  law  until  over  twenty  years  later,  per- 
haps partly  because  the  leaders  there  insisted  on  effective 
legislation,  which  these  earlier  measures  did  not  prove  to  be. 

These  first  acts  were  all  of  a  similar  type.  They  set  ten 
hours  as  the  standard,  generally  for  all  workers,  for  "a  day's 
work"  in  the  absence  of  "an  express  contract  requiring  greater 
time."  3  In  New  Hampshire,  three  days  before  the  law  went 
into  effect  the  manufacturers  submitted  such  express  con- 
tracts to  their  employees,  and  though  meetings  were  held  and 
active  agitation  carried  on  to  prevent  the  operatives  from 
signing,  all  who  refused  were  discharged  and  their  places 
were  soon  filled  by  new  workers.  In  Pennsylvania  and  New 
Jersey,  notably  at  Allegheny  City,  Gloucester,  and  Pater  son, 
the  operatives  carried  on  severe  and  prolonged  strikes  to 
secure  the  enforcement  of  the  laws.  They  were  successful 
in  some,  though  not  in  all  factories,  but  where  the  hours  were 
shortened  they  suffered  a  corresponding  reduction  in  wages. 
On  the  whole,  these  early  acts  "were  practically  dead  letters, 
owing  to  their  contracting-out  clauses."  4 


1  Report  on  Condition  of  Woman  and  Child  Wage-Earners  in  the  United 
States,  Vol.  X,  "History  of  Women  in  Trade  Unions,"  John  B.  Andrews, 
p.  80. 

2  Ibid.,  Vol.  IX,  "History  of  Women  in  Industry,"  Helen  L.  Sumner, 
p.  69. 

3  See,  for  instance,  New  Hampshire,  Laws  1847,  C.  488. 

4  Report  on  Condition  of  Woman  and  Child  Wage-Earners  in  the  United 
States,  Vol.  IX,  p.  73. 


HOURS  OF  LABOR  233 

From  the  'fifties  until  after  the  Civil  War,  social  reform  was 
largely  forgotten  in  absorption  in  the  anti-slavery  question. 
After  the  Civil  War,  when  the  movement  for  protective  legis- 
lation revived,  the  laws  asked  for  applied  only  to  women 
and  children,  and  were  of  the  modern  type,  forbidding  em- 
ployment in  excess  of  a  specified  number  of  hours.  The  first 
of  these  had  been  passed  in  Ohio  in  I8521  and  set  a  ten-hour 
day  for  women  workers,  but  was  rendered  unenforceable  by 
penalizing  only  when  a  woman  was  compelled  to  work  in  ex- 
cess of  legal  requirements.  As  most  employees  will  volun- 
tarily work  for  twelve  or  more  hours  a  day  when  they  cannot 
find  any  one  to  employ  them  for  ten  hours,  the  law  became 
almost  entirely  inoperative.  In  Massachusetts,  active  agita- 
tion was  recommenced  by  1864.  By  that  time  the  women 
in  the  mills  were  largely  Irish  and  French  Canadians,  who  took 
little  or  no  part  in  the  movement.  After  strong  opposition 
a  bill  was  passed  in  1874  2  limiting  the  hours  of  women  and 
minors  in  factories  to  ten  daily  and  sixty  weekly.  But  even 
this  law  was  ineffective  because  only  "wilful"  violations  were 
penalized.  It  was  not  till  i879,3  when  an  amendment  re- 
moved the  "wilful,"  that  an  American  state  had  an  enforce- 
able law  limiting  the  hours  of  women's  employment.  By 
that  time  also  state  bureaus  of  labor  and  factory  inspection 
were  being  created  in  the  principal  industrial  states  and  were 
aiding  in  the  enforcement  of  labor  laws. 

Since  that  time  fairly  enforceable  hour  limitation  laws  for 
women  have  been  secured  in  one  state  after  another.  In 
1908,  when  the  Oregon  ten-hour  law  for  women  was  upheld 
by  the  United  States  Supreme  Court,  this  legislation  was 
placed  upon  a  secure  footing,  and  since  that  date  the  move- 
ment has  gone  steadily  forward.  By  1920  only  six  states, 
in  most  of  which  comparatively  few  women  were  industrially 
employed,  had  placed  no  restrictions  on  women's  hours  of 
work,4  many  had  limited  hours  to  eight  or  nine  a  day  and  the 
majority  had  a  weekly  limit  of  less  than  sixty  hours. 

Present-day  hour  legislation  for  women  runs  in  general 


1  Ohio,  Laws  1852,  p.  187.  2  Massachusetts,  Laws  1874,  C.  221. 

3  Massachusetts,  Laws  1879,  C.  207. 

4  These  states  were  Alabama,   Florida,  Indiana,  Iowa,  New  Mexico, 
and  West  Virginia. 


234       PRINCIPLES  OF  LABOR  LEGISLATION 

along  similar  lines  in  the  different  states.  Most  statutes  fix 
the  same  daily  and  weekly  maximum  hours  for  all  occupations 
covered  and  generally  include  the  principal  industrial  occupa- 
tions for  women.  Thus  in  Pennsylvania  hours  in  "any  estab- 
lishment" are  limited  to  ten  daily  and  fifty-four  weekly,  and 
"any  establishment"  is  defined  as  "any  place  within  this 
commonwealth  where  work  is  done  for  compensation  of  any 
sort,  to  whomsoever  payable"  *  except  homes  and  farms.  In 
only  a  few  cases,  however,  do  the  laws  define  the  time  during 
which  the  work  period  must  fall,  either  by  naming  the  spread 
of  hours  allowed,  by  fixing  opening  and  closing  hours,  or  by 
forbidding  night  work. 

American  laws,  therefore,  seem  extremely  simple  when  com- 
pared with  the  mass  of  detail  found  in  European  legislation 
on  this  subject.  General  laws  exist  in  most  European  coun- 
tries, but  either  by  special  statutes  or  by  administrative  orders 
work  periods  longer  or  shorter  than  those  of  the  general  law 
are  fixed  for  many  industries  and  occupations,  and  frequently 
even  for  special  processes.  This  principle  is  often  so  far  ex- 
tended as  to  prohibit  entirely  the  employment  of  women  in 
kinds  of  work  especially  dangerous  to  their  health  or  safety. 
For  example,  the  English  factory  act  of  1901  gives  the  home 
secretary  power  to  make  any  limitation  of  hours  whatever 
or  to  forbid  the  employment  of  any  class  of  workers  in  dan- 
gerous trades.2  On  the  other  hand,  in  certain  cases,  as  where 
perishable  materials  must  be  handled  at  once  to  prevent 
spoiling,  special  orders  lengthening  the  permitted  period  of 
employment  may  be  issued.3  In  addition,  night  work  is,  in 
general,  forbidden,  and  opening  and  closing  hours,  not 
necessarily  the  same  for  every  trade,  are  almost  always 
fixed. 

The  number  of  employments  covered  by  hour  legislation  in 
America  appears  to  depend  largely  on  what  occupations  public 
opinion  considers  dangerous  to  the  health  of  women.  Thus 
the  exclusion  of  farm  work  and  domestic  service  from  regula- 
tion is  at  least  in  part  due  to  the  belief  that  they  in  no  way 
endanger  health.  The  earlier  laws,  both  those  passed  be- 


1  Pennsylvania,  Laws  1913,  No.  466,  Sees.  I  and  3. 

2  i  Edw.  7,  C.  22,  Sees.  79-83.  3 1 


6- 

3  Ibid.,  Sees.  49-52. 


HOURS  OF  LABOR  235 

fore  the  Civil  War  to  fix  a  standard  of  hours  and  the  first  acts 
of  the  modern  type,  applied  mainly  to  manufacturing  estab- 
lishments. Such  a  limitation  in  the  scope  of  the  early  laws 
was  natural  enough.  At  that  time  women  were  employed  in 
large  numbers  outside  the  home  only  in  textile  factories.  The 
Census  of  1870  shows  that  but  i  per  cent,  of  all  the  women 
''gainfully  employed"  were  foUnd  in  "trade  arid  transporta- 
tion." It  was  in  the  factories  that  complaint  was  made  of 
the  overlong  hours  of  work,  and  it  was  the  factory  operatives 
who  carried  on  the  bulk  of  the  early  agitation  for  legislation. 
Thus  in  New  Hampshire  the  first  hour  limitation  law,  passed 
in  1847,  applied  only  to  manufacturing  establishments,1  and 
the  Pennsylvania  law  of  1848  affected  only  "cotton,  woolen, 
silks,  paper,  bagging,  and  flax  factories." 2  Likewise  the 
Massachusetts  ten-hour  law  of  1874  covered  only  "manu- 
facturing establishments."  3  It  was  not  until  the  end  of  the 
'severities,  when  the  number  of  saleswomen  had  largely  in- 
creased, that  the  dangers  of  constant  standing  and  long  hours 
were  noticed  and  agitation  was  begun  for  legislation  covering 
this  occupation.4  In  1883  the  Massachusetts  law  was  amend- 
ed to  include  "mechanical  and  mercantile  establishments."  5 
In  the  same  way,  as  the  field  of  women's  employment  broad- 
ened, the  dangers  of  excessive  hours  and  injury  to  health  were 
discovered  in  one  occupation  after  another,  and  the  need  for 
extending  protective  legislation  became  correspondingly  ap- 
parent, until,  in  the  laws  passed  in  the  last  few  years,  prac- 
tically every  form  of  industrial  employment  has  been  cov- 
ered at  the  same  time  and  by  the  same  restrictions. 

The  Illinois  ten-hour  law  of  1909  was  one  of  the  first  to  do 
this.  It  includes  not  only  factories,  mechanical  and  mer- 
cantile establishments,  but  also  any  "laundry,  or  hotel,  or 
restaurant,  or  telegraph  or  telephone  establishment  or  office 
thereof,  or  any  place  of  amusement,  or  by  any  person,  firm, 
or  corporation  engaged  in  any  express  or  transportation  or 


1  New  Hampshire,  Laws  1847,  C.  488. 

2  Pennsylvania,  Laws  1848,  No.  227. 

3  Massachusetts,  Laws  1874,  C.  221. 

4  Report  on  the  Condition  of  Woman  and  Child  Wage-Earners  in  the 
United  States,  Vol.  IX,  p.  238. 

6  Massachusetts,  Laws  1883,  C.  157. 


236       PRINCIPLES  OF  LABOR  LEGISLATION 

public  utility  business,  or  by  any  common  carrier,  or  any  public 
institution,  incorporated  or  unincorporated."  l  Similarly  in- 
clusive acts  are  found  in  half  a  dozen  other  states,  and  almost 
every  act  now  covers  at  least  "manufacturing,  mechanical, 
and  mercantile  establishments."  However,  when  women 
entered  such  new  occupations  as  street-car  and  elevator 
operation  during  the  war,  even  the  more  inclusive  of  those 
acts  which  enumerated  any  list  of  specified  occupations  left 
the  women  without  protection  in  their  novel  field  of  work. 
Laws  such  as  that  of  Pennsylvania,  which  covers  "any  place 
.  .  .  where  work  is  done  for  compensation  of  any  sort,"  except 
" private  home  and  farming,"  and  that  of  Wisconsin,  which 
gives  the  administrative  authorities  power  to  modify  the  hour 
laws,  are  better  suited  to  meet  changing  industrial  conditions. 

There  are  also  occasional  instances  of  classification  by 
cities,  exempting  the  smaller  places  from  the  operation  of  the 
law.  The  Missouri  law  of  1909  2  and  the  Texas  law  of  1913  3 
both  applied  only  to  cities  of  more  than  5,000  population. 
The  Minnesota  law  applies  only  to  first  and  second  class 
cities  (over  20,000  population).4  Establishments  of  various 
sorts  employing  fewer  than  three  or  five  persons  have  also 
sometimes  been  excepted.  Until  1914  the  Louisiana  law  ap- 
plied only  to  establishments  employing  more  than  five  per- 
sons.5 

Such  exemptions  may  perhaps  also  be  explained  on  health 
grounds.  It  might  be  expected  that  the  need  for  legislation 
in  smaller  places  would  be  lessened  by  a  supposed  easier  pace 
of  work  and  the  greater  personal  contact  between  employer 
and  employee.  Investigation  shows,  however,  that  excessive 
hours  are  often  worked  in  small  establishments  and  out-of- 
the-way  places  where  public  opinion  is  not  active,  and  such 
exceptions  are  becoming  fewer.6 

Certain  exemptions  have  also  been  made  because  of  special 


Illinois,  Laws  1909,  p.  212. 

Missouri,  Laws  1909,  p.  616.       3  Texas,  General  Laws  1913,  C.  175. 

Minnesota,  Laws  1913,  C.  581,  Sec.  i. 

Louisiana,  Laws  1908,  No.  301,  Sec.  i. 

For  instances  of  bad  conditions  in  the  smaller  establishments  see 
reports  of  the  New  York  State  Factory  Investigating  Commission,  the 
Senate  Wage  Commission  for  Women  and  Children  in  the  State  of 
Missouri,  the  Oregon  Social  Survey,  and  similar  investigations. 


HOURS  OF  LABOR  237 

industrial  requirements,  the  most  important  of  which  have 
to  do  with  work  in  canneries.  On  account  of  the  perishable 
nature  of  the  materials,  operators  of  canneries  have  vigor- 
ously opposed  any  legislation  which  would  limit  hours  of  work 
during  the  summer  months,  and  because  of  this  opposition 
a  number  of  states,  including  most  of  those  in  which  the 
industry  is  important,  have  allowed  women  and  children  to 
work  unlimited  hours  in  this  industry. 

In  the  degree  of  restriction  placed  upon  hours  of  women's 
daytime  labor,  many  American  states  have  gone  further  than 
European  countries.  Many  important  industrial  states  still 
follow  early  English  and  American  precedent  and  fix  a  daily 
limit  of  ten  hours,  though  a  majority  have  reduced  the  working 
week  to  less  than  sixty  hours.  In  recent  years,  however,  as 
the  eight-hour  day  movement  has  spread  and  standards  for 
protective  legislation  have  risen,  several  progressive  states 
have  limited  the  workday  to  nine  and  even  to  eight  hours. 
New  York  is  the  most  important  industrial  state  having  the 
nine-hour  day  and  the  fifty-four-hour  week,  while  Ohio  adds 
to  the  nine-hour  day  a  fifty-hour  weekly  limit,  and  Massachu- 
setts a  forty-eight.  The  eight-hour  limits  are  found  in  several 
western  states  and  in  the  District  of  Columbia,  but  only  Cali- 
fornia, Porto  Rico,  Utah,  and  the  District  have  the  forty-eight- 
hour  week  as  well  as  the  eight-hour  day.1 


1  On  January  I,  1920,  the  situation  with  regard  to  women's  hours  was 
as  follows: 

/.  Eight-Hour  States: 

State  Hours  a  Day  Hours  a  Week 

California 8  4»* 

District  of  Columbia 8  48* 

Porto  Rico 8  48 

Utah 8  48 

Colorado 8 

Montana 8 

Washington 8 

Kansas 8*  (Basic.  Seven  hours  overtime 

allowed  in  emergencies.  By 
rulings  of  Industrial  Welfare 
Commission) 

Arizona.... 8       ^  56 

Nevada 8  5$ 


238       PRINCIPLES  OF  LABOR  LEGISLATION 

Most  American  laws  omit  one  great  aid  to  enforcement  in 
failing  to  set  a  legal  closing  hour.1     A  few  states  fix  the  in- 

//.  States  Allowing  More  than  Eight  but  Less  than  Ten  Hours: 

State  Hours  a  Day  Hours  a  Week 

North  Dakota 81-2  48* 

Massachusetts 9  48 

Ohio 9  50 

[81-3  mercantile  50 

Oregon \  8  1-2  office  51 

[  9  any  other  industry  54 
(By  rulings  of  Industrial 
Welfare  Commission) 

Arkansas 9  54* 

Maine. 9  54 

Missouri 9  54 

Nebraska 9  54 

New  York 9  54* 

Texas 9  54 

-,.  [9  manufacturing,  etc.  54 

Minnesota |  ,*  mercantiie>  etc.  58 

Idaho 9 

Oklahoma 9 

///.  States  Allowing  Ten  or  More  Hours: 

Wyoming 10  52,  60 

Connecticut 10  55,  58 

Delaware 10  55 

Michigan 10  §4 

Pennsylvania 10  54* 

Rhode  Island jo  54 

!S  street  railway  opera- 
tion 
10  other  55* 

New  Hampshire. 10  1-4  54 

Vermont 101-2  56 

Tennessee 10  1-2  57 

Georgia 10  60 

Kentucky 10  60 

Louisiana 10  60 

Maryland 10  60 

Mississippi 10  60 

New  Jersey 10  60* 

South  Carolina 1 1,  12  60 

North  Carolina —  60 

Illinois 10 

South  Dakota 10 

Virginia 10 

/  V.  States  Having  No  Laws  Regulating  Hours  of  Labor  for  Women: 

Alabama,  Florida,  Iowa,  Indiana,  New  Mexico,  West  Virginia. 
In   the  states   marked   with  an  asterisk  work  is  limited  to  six  days 

a  week. 

1  In  a  few  states  the  danger  that  a  woman  may  be  employed  by  two 
or  more  establishments  a  total  length  of  time  in  excess  of  the  legal  maxi- 


HOURS  OF  LABOR  239 

cidence  of  the  working  day  indirectly  through  the  prohibition 
of  night  work.1  In  Arizona,  Utah,  and  Wyoming  by  statute, 
and  in  Kansas  and  Oregon  by  industrial  welfare  commission 
order,  the  permitted  hours  must  fall  within  a  ten-  or  twelve- 
hour  period,  but  as  a  general  rule  regulations  of  the  sort  are 
not  found  in  America. 

Though  a  number  of  states  still  permit  overtime  work,  the 
general  tendency  seems  to  be  toward  doing  away  with  all 
such  exceptions.  In  1909,  half  the  state  laws,  fourteen  out 
of  twenty-eight,  allowed  a  certain  amount  of  overtime  work. 
In  1920,  similar  exceptions  were  found  in  only  about  a  third 
of  the  statutes.  The  actual  working  of  the  laws,  both  in  this 
country  and  abroad,  has  shown  that  all  such  exceptions  are 
often  a  decided  handicap  to  the  enforcement  of  the  law,  being 
used  to  cover  violations,  or  that  at  best  they  often  defeat  its 
purpose  by  legalizing  hours  so  excessive  as  to  be  a  danger 
to  health.  Therefore  the  tendency  of  recent  legislation  is 
against  overtime  work  in  any  circumstances. 

The  conditions  under  which  overtime  work  is  still  allowed 
seem  to  fall  under  three  main  heads.  The-Qvertime  work  on  // 
account  of  the  stoppage  of  machinery^  allowed  in  several 
states,  and  a  few  similar  exceptions^  are  all  permitted  for  the 
purpose  of  making  up  lost  time,  ^^everal  states  allow  over- 
time to  meet  the  pressure  oiL&peeial- industrial  requirements, 
notably  the  C^figt-Tn.RS jisb_  i11  retail  $tnxt><z  where  all  hour 
limitations  may  be  removed  during  that  period,  as  in  New 
Jersey,2  or  a  limited  arnount  of  overtime  may  be  allowed,  as 
in  Montana.3  JSFinally,  a  very  few  states  fix  the  amount  of 
overtime,  but  not  the  conditions  under  which  it  may  be 
worked ;  for  example,  New  York,  which  allows  an  hour  of  over- 


mum  is  recognized.  In  Massachusetts,  for  instance,  until  recent  years, 
it  was  not  uncommon  in  the  textile  mills  for  a  woman  to  work  ten  hours 
during  the  day  in  one  mill,  and  then  for  several  hours  in  the  evening  in 
another.  The  practice  was  called  "swapping."  The  Delaware  statute 
(Laws  1913,  C.  175,  Sec.  2)  contains  a  prohibitive  provision  in  effective 
form,  applying  to  all  classes  of  work  and  placing  the  responsibility  for 
discovering  any  previous  employment  in  the  same  day  entirely  on  the 
employer. 

1  See  "  Night  Work,"  pp.  273-277. 

2  New  Jersey,  Laws  1912,  C.  216,  Sec.  1. 

3  Montana,  Laws  1917,  C.  18,  70. 


240       PRINCIPLES  OF  LABOR  LEGISLATION 

time  in  factories  on  each  of  three  days  a  week,  provided 
the  weekly  total  of  hours  is  not  exceeded  thereby.1 

As  previously  stated,  American  statutes  usually  set  the 
same  daily  hour  limit  for  a  large  and  varied  group  of  indus- 
tries. That  the  requirements  and  the  strain  of  various  occu- 
pations may  differ  widely,  and  that  the  same  limitation  of 
hours  may  not  equally  well  meet  the  needs  of  the  workers 
in  all  of  them,  has  been  given  but  little  consideration.  For 
example,  while  it  is  apparent  that  in  some  occupations  eight 
or  even  ten  hours  a  day  may  not  be  physically  injurious, 
in  others,  such  as  those  involving  exposure  to  poisons,  ex- 
tremes of  temperature  or  humidity,  or  excessive  nervous 
strain,  a  much  shorter  work  period  may  be  seriously  harmful 
to  health.  In  certain  branches  of  the  telephone  service,  for 
example,  the  nervous  strain  is  particularly  severe.  In  1907, 
in  Toronto,  Canada,  a  royal  commission  was  appointed  to 
investigate  a  dispute  between  the  Bell  Telephone  Company 
and  its  operators.  From  the  evidence  given  by  physicians, 
the  commission  decided  that  if  the  health  of  the  workers  was 
to  be  preserved,  the  workday  should  not  be  more  than  six 
hours,  spread  over  a  period  of  about  eight  hours.2  Yet  no 
American  state  has  on  account  of  special  dangers  placed  the 
statutory  restriction  for  any  selected  occupation  in  which 
women  are  employed  below  that  stated  in  the  general  law. 
But  recently  a  few  states  have  adopted  a  new  method  of 
i-egulating  women's  hours,  together  with  minimum  wages 
,  /and  working  conditions.  These  states  lay  down  in  their 
fm  statutes  the  general  principle  that  a  woman  is  not  to  be  em- 
(  ployed  for  any  period  of  time  dangerous  to  her  health,  safety, 
or  welfare.  A  commission  is  then  given  the  power  to  deter- 
mine, after  investigation,  maximum  periods  for  different  in- 
dustries and  even  for  different  localities,  if  desired.  Such  a 
law  may  become  an  instrument  for  the  protection  of  the 
worker's  health  much  superior  to  the  ordinary  flat-rate  law. 
A  commission  regulating  hours,  through  its  powers  of  in- 
vestigating and  setting  standards,  can  take  account  of  special 

1  New  York,  Laws  1909,  C.  36,  Sec.  78  (i). 

*  Report  of  the  Royal  Commission  on  a  Dispute  Respecting  Hours  of 
Employment  between  the  Bell  Telephone  Company  of  Canada,  Ltd.,  and 
Operators  at  Toronto,  Ontario,  1907. 


HOURS  OF  LABOR  241 

factors  in  certain  lines  of  work  which  might  cause  serious 
injury  to  the  workers  in  the  usual  work  period,  and  can  adjust 
hours  according  to  the  strain  of  each  specific  occupation. 

While  all  laws  of  this  type  conform  to  this  same  general 
principle,  they  differ  in  one  important  provision. .  Califor- 
nia l  and  Oregon_pennit  their  commissions  to  fix  only  shorter 
hours  tEan  those  established  by  the  general  statute.  "No 
such  order  of  said  commission  shall  authorize  or  permit  the 
employment  of  any  woman  for  more  hours  per  day  or  per 
week  than  the  maximum  now  fixed  by  law."  2  But  in  Ohio 
and  Wisconsin  the  hours  fixed  may  be  either  more  or  less  than 
those  of  the  general  law.  Kansas  has  no  law  limiting  hours 
for  women  except  the  act  empowering  the  commission  to  make 
regulations. 

In  Kansas,  Oregon,  and  Washington,  the  chief  states  in 
which  really  important  action  on  hours  of  labor  has  been  taken 
by  these  commissions,  a  considerable  amount  of  flexibility  has 
been  secured  in  the  determination  of  daily  hours  by  commis- 
sion rulings.  In  Oregon,  for  example,  where  the  statutory 
limit  for  females  over  sixteen  is  ten  hours  a  day,  the  industrial 
welfare  commission  has  fixed  women's  daily  hours  for  the  city 
of  Portland  at  nine  in  manufacturing,  and  at  eight  and  a 
third  in  stores.  Even  in  canneries,  which  are  often  excluded 
altogether  from  maximum  hour  laws,  the  commission  permits 
overtime  in  excess  of  nine  hours,  for  only  one  hour  daily  and 
six  hours  weekly,  for  not  more  than  six  weeks  during  the 
year,  and  all  such  overtime  must_be  paid  for  at  increased 
rates. 

The  possibilities  of  still  more  detailed  adjustment  to  the 
needs  of  specific  industries  are  evident,  and  therefore  the 
method  of  regulating  hours  through  administrative  rulings, 
provided  the  precaution  is  taken  of  preserving  a  statutory 
limit  of  hours,  marks  a  decided  advance  toward  accomplish- 
ing the  real  purpose  of  hour  limitation,  the  prevention  of 
fatigue  by  forbidding  excessive  hours  of  work. 

Most  of  the  special  problems  in  the  administration  of 
woman's  work  laws  center  about  the  enforcement  of  hour 
legislation.  Violations  of  laws  regulating  a  continuing  con- 


1  California,  Laws  1913,  C.  324. 

2  Oregon,  Laws  1913,  C.  62,  Sec.  9, 


242       PRINCIPLES  OP  LABOR  LEGISLATION 

dition  like  hours  of  work  are  obviously  more  difficult  to  de- 
tect than  violations  of  safety  or  sanitary  laws  which  can  be 
discovered  by  a  single  inspection.  Therefore,  various  aids 
to  enforcement  have  long  been  found  necessary.  The  most 
common  of  these  is  the  posting  of  notices,  stating  the  per- 
mitted hours  of  work,  a  requirement  which  the  United  States 
Supreme  Court  sustained  as  constitutional  in  191 4.1  Such  a 
provision  had  long  been  in  the  laws  of  a  number  of  states. 
Massachusetts,  following  English  precedent,  had  found  it 
necessary  to  require  the  posting  of  notices  as  early  as  i88o.2 
The  law  stipulated  that  printed  notices  containing  the  daily 
hours  of  work  should  be  posted  "in  a  conspicuous  place"  in 
every  room  where  employees  coming  under  the  ten-hour  law 
were  at  work.  Immediately  an  attempt  was  made  to  evade 
the  intent  of  the  act.  A  report  of  the  enforcing  authority,  the 
chief  of  the  district  police,  says  that  notices  were  found  il- 
legibly written,  "on  cards  four  or  five  inches  square,  sometimes 
without  a  single  break  between  the  words,  and  placed  over  a 
doorway  or  some  other  inaccessible  place."  3  Extra  time  was 
also  worked  on  thfc  pretense  that  it  was  necessary  to  stop  and 
start  the  machinery.  Two  amendments,  in  1886  4  and  iSSy,5 
were  necessary  in  order  to  overcome  these  difficulties.  The 
law  then  provided  that  the  notices  must  be  put  on  forms  ap- 
proved by  the  attorney-general  and  supplied  by  the  enforc- 
ing authority,  and  must  contain  the  hours  of  beginning  and 
ending  work  and  of  meal-times,  as  well  as  the  number  of 
hours  worked  each  day.  Similar  provisions  as  to  the  posting 
of  notices  have  been  found  essential  in  other  states. 

.A  more  recent  device  which  provides  additional  help  in 
enforcing  the  law  is  that  of  a  record  book,  open  to  inspection 
by  the  authorities  and  containing  the  actual  hours  worked 
each  day  by  each  female.  Few  states  rely  exclusively  on 
this  device  for  help  in  enforcing  the  law.6  Several  states, 
however,  require  the  keeping  of  record  books  in  addition  to 


1  Riley  v.  Commonwealth,  232  U.  S.  671,  34  Sup.  Ct.  469  (1914). 

2  Massachusetts,  Laws  1880,  C.  194. 

3  Report  of  the  Chief  of  the  District  Police,  1884,  pp.  14-18. 

4  Massachusetts,  Laws  1886,  C.  90. 
8  Ibid.,  Laws  1887,  C.  280. 

8  One  of  these  is  Illinois,  Laws  1911,  p.  328. 


HOURS  OF  LABOR  243 

posting  notices,1  or  as  a  substitute  where  daily  hours  are  so 
irregular  that  they  cannot  be  determined  in  advance.2 

Even  the  wording  of  the  penalty  clause  is  of  importance  in 
relation  to  the  enforceability  of  the  law.  Massachusetts 's  first 
ten-hour  law  could  not  be  enforced  so  long  as  only  ".wilful" 
violations  were  penalized.  Several  states  still  render  their 
laws  inoperative  by  similar  clauses.  For  instance,  in  South 
Dakota  only  the  employer  who  "compel?"  a  woman  to  work 
overtime  is  responsible.3  Experience  shows  that  it  is  prac- 
tically impossible  to  prove  such  compulsion  and  that  con- 
victions can  be  secured  only  when  "r^gjiit.t-i^g"  excessive 
hours  is  also  a  violation  of  the  law.  The  enforceability  of  the 
laws  in  a  few  southern  states,  which  penalize  only  "contract- 
ing" to  work  overtime,  also  seems  doubtful.4  Even  among 
the  enforceable  laws  there  is  a  difference  in  effectiveness.  It 
is  clearly  easier  to  obtain  proof  of  violation  in  a  state  like 
New  Hampshire,5  where  the  employment  of  a  woman  "out- 
side" the  posted  hours  is  a  violation  of  the  law,  than  where 
the  inspector  must  prove  that  she  worked  "longer"  than  the 
posted  number  of  hours,  as  in  Tennessee.6  It  may  also  be  of 
importance  in  successful  prosecutions  to  note  whether  the 
employer  alone,  "his  agent"  or  "any  person"  may  be  held 
responsible,  and  whether  only  the  working  of  excess  hours  is 
penalized  or,  in  addition,  a  failure  to  post  notices,  the  making 
of  false  statements  in  notices  and  time-books  and  the  like. 

Equitable  and  necessary  as  legal  limitations  on  the  daily 
hours  of  working-women  are  generally  recognized  to  be,  they 
have  frequently  been  contested  as  out  of  harmony  with  our 
state  and  federal  constitutions.  Clearly,  limiting  the  hours 
during  which  a  woman  may  be  employed  does  abridge  her 
freedom  to  use  her  capacity  for  work  to  its  utmost  extent. 
The  courts  seem  to  hold  in  general  that  such  a  limitation  may 
be  made  through  the  state's  exercise  of  its  police  power  only 
if  excessive  hours  involve  some  appreciable  danger  to  the 
class  of  workers  involved  or  to  the  community. 

1  See  New  York,  Laws  1913,  C.  200,  Sec.  5. 

2  See  Kentucky,  Laws  1912,  C.  77,  Sec.  5. 

3  South  Dakota,  Laws  1913,  C.  240,  Sec.  i. 

4  See  Virginia,  Laws  1914,  C.  158,  Sec.  i. 

5  New  Hampshire,  Laws  1913,  C.  156,  Sec.  3. 

6  Tennessee,  Laws  First  Extra  Session,  1913,  C.  121. 


244       PRINCIPLES  OF  LABOR  LEGISLATION 

The  conflict  of  judicial  decisions  on  the  subject  appears  to 
arise  from  differing  opinions  as  to  the  existence  of  such  danger. 
Opinions  opposed  to  legal  restriction  emphasize  the  interfer- 
ence with  woman's  freedom  to  contract  to  work  each  day  as 
long  as  she  pleases,  implying  that  employer  and  employee 
stand  on  an  equal  footing  in  determining  working  conditions, 
and  that  an  employee  works  long  hours  of  her  own  free  will. 
Such  a  restriction  of  freedom  of  contract,  they  hold,  deprives 
a  woman  worker  without  due  process  of  law  of  the  valuable 
property  right  of  disposing  of  her  own  labor  as  she  sees  fit, 
and  furthermore  is  class  legislation  because  it  denies  her  privi- 
leges accorded  to  men  workers.  The  favorable  decisions  take 
cognizance  of  actual  industrial  conditions  and  point  out  that 
the  labor  contract  is  not  freely  made  between  equals,  but  that 
its  terms  are  settled  largely  by  the  employer  and  that  the 
state  may  therefore  interfere  in  the  interests  of  the  public 
welfare. 

The  first  important  decision  on  the  constitutionality  of  hour 
legislation  for  women  was  rendered  in  Massachusetts  in  1876, 
upholding  the  ten-hour  law.  In  this  case,  says  Professor 
Ernst  Freund,1  "the  court  was  obviously  a  good  deal  puz- 
zled how  to  deal  with  the  objections  raised,  disposing  of 
them  in  a  rather  offhand  and  not  altogether  satisfactory 
fashion."  In  a  brief  opinion  2  the  court  pointed  out  that  the 
legislature  had  evidently  considered  factory  work  "to  some 
extent  dangerous  to  health,"  and  that  the  statute  was  there- 
fore a  health  or  police  measure.  This  decision,  however,  held 
that  the  legislation  did  not  prevent  women  from  working  as 
long  as  they  saw  fit,  but  only  from  working  more  than  ten 
hours  continuously  in  a  factory. 

The  next  important  decision  on  the  constitutionality  of  hour 
legislation  for  women  was  not  rendered  until  1895,  almost 
twenty  years  later.  During  the  interval  the  principle  of  en- 
tire freedom  of  contract  between  capital  and  labor  had  been 
developed.3  This  doctrine  was  reinforced  by  the  idea  that 


1  Freund,  "Constitutional  Limitations  and  Labor  Legislation,"  in  Third 
Annual  Meeting  of  the  American  Association  for  Labor  Legislation,  p.  51. 

1  Commonwealth  v.  Hamilton  Mfg.  Co.,  120  Mass.  383  (1876). 

'First  laid  down  in  1886  in  Godcharles  v.  Wigeman,  113  Pa.  St.  431, 
6  Atl.  354;  Millett  v.  People,  117  111.  294,  7  N.  E.  631  (1886). 


HOURS  OF  LABOR  245 

the  right  to  dispose  of  one's  labor  freely  is  a  property  right, 
not  to  be  abridged — according  to  the  fourteenth  amendment 
to  the  constitution  of  the  United  States — "without  due 
process  of  law."  It  was  on  this  ground  that  in  1895  the 
Illinois  Supreme  Court  declared  invalid  an  eight-hour  law 
for  women  in  factories.1  The  court  could  see  no  "fair,  just, 
and  reasonable  connection  between  such  limitation  and  the 
public  health,  safety,  or  welfare  proposed  to  be  secured 
by  it."  •- 

But  three  years  later,  in  1898,  the  United  States  Supreme 
Court  showed  the  fallacy  of  the  doctrine  of  freedom  of  con- 
tract between  employer  and  employee,2  and  within  the  next 
few  years,  in  1900  and  1902,  three  decisions  by  state  courts3 
brought  out  in  addition  reasons  why  women  as  a  special  class 
of  workers  particularly  need  protection.  These  decisions  took 
into  account  the  fact  that  women  are  physically  weaker  than 
men  and  that  therefore  their  health  is  more  likely  to  suffer 
from  excessive  hours  of  work.  Any  injury  to  the  health  of 
women  workers  is  of  particular  social  importance,  since  it  is 
on  their  health  that  the  vigor  of  the  next  generation  directly 
depends. 

The  year  1908,  however,  finally  settled  the  question  as  far 
as  the  restriction  of  daytime  hours  to  a  maximum  of  ten  was 
concerned.  The  United  States  Supreme  Court  unequivocally 
upheld  the  constitutionality  of  the  Oregon  ten-hour  law  as  a 
health  measure.4  "As  healthy  mothers  are  essential  to  vig- 
orous offspring,  the  physical  well-being  of  women  becomes  an 
object  of  public  interest  and  care  in  order  to  preserve  the 
strength  and  vigor  of  the  race.  .  .  .  The  limitations  which  this 
statute  imposes  upon  her  contractual  powers,  upon  her  right 
to  agree  with  her  employer  as  to  the  time  when  she  shall  labor, 
are  not  imposed  solely  for  her  benefit,  but  also  for  the  benefit 
of  all."  In  this  case  and  succeeding  ones  of  a  similar  nature 
the  influence  of  the  method  by  which  the  legislation  was  de- 

1  Ritchie  v.  People,  155  111.  98,  40  N.  E.  454  (1895). 

2  Holden  v.  Hardy,  169  U.  S.  366,  18  Sup.  Ct.  383  (1898).     See  "Hours 
of  Labor,  Men,"  p.  266. 

3  Commonwealth  v.  Beatty,  15  Super.  Ct.  (Pa.)  5  (1900);   Wenham  p. 
State,  65  Neb.  394,  91  N.  W.  421  (1902);   State  v.  Buchanan,  29  Wash. 
602,  70  Pac.  52  (1902). 

4  Muller  v.  Oregon,  208  U.  S.  412,  28  Sup.  Ct.  324  (1908). 


246       PRINCIPLES  OF  LABOR  LEGISLATION 

fended  should  not  be  overlooked.  Exhaustive  briefs  were 
prepared  by  Mr.  Louis  D.  Brandeis  and  Miss  Josephine  Gold- 
mark,  not  so  much  emphasizing  the  legal  aspects  of  the  case 
as  presenting  a  mass  of  extracts  to  show  the  actual  effects  o£ 
excessive  hours  of  work  on  the  health  of  women.  In  1909, 
Illinois,  whose  working-women  had  been  left  unprotected 
from  excessive  hours  since  its  eight-hour  law  was  overthrown 
in  1895,  passed  a  ten-hour  bill.  The  constitutionality  of  the 
statute  was  immediately  attacked.  This  time,  however,  the 
Illinois  Supreme  Court  did  find  a  clear  connection  between 
the  measure  and  the  protection  of  the  public  health.  It 
recognized  not  merely  a  theoretical  freedom  of  contract,  but, 
as  well,  the  facts  as  to  the  effects  of  excessive  hours  on  the 
health  of  women.  "What  we  know  as  men,"  said  the  court, 
"we  cannot  profess  to  be  ignorant  of  as  judges."  l 

The  constitutionality  of  a  ten-hour  workday  was  now  es- 
tablished, but  the  reasonableness  of  further  restriction  was 
still  in  doubt.  In  1915,  however,  the  United  States  Supreme 
Court  upheld  the  constitutionality  of  the  California  law  which 
fixed  an  eight-hour  day  as  the  maximum  for  women  workers. 
The  court  said  that  the  same  principles  were  at  stake  as  in 
the  previous  cases,  and  that  while  "a  limitation  of  the  hours 
of  labor  of  women  might  be  pushed  to  a  wholly  indefensible 
extreme  .  .  .  there  is  no  ground  for  the  conclusion  here  that 
the  limit  of  the  reasonable  exertion  of  protective  authority 
has  been  overstepped."  2 

Hour  legislation  for  women  has  also  been  attacked  on  the 
ground  that  it  is  class  legislation,  discriminating  unreason- 
ably between  various  classes  of  workers,  and  denying  that 
"equal  protection  of  the  laws"  which  was  promised  to  all  per- 
sons by  the  fourteenth  amendment.  The  statutes  have  been 
attacked  both  because  they  included  certain  employments 
and  because  they  failed  to  include  certain  others.  The  con- 
stitutionality of  the  Illinois  law  was  questioned  because  it 
included  employees  in  hotels  and  in  public  institutions.  One 
of  the  chief  points  raised  against  the  constitutionality  of  the 
California  law  was  its  inclusion  of  student  nurses.  On  the 
other  hand,  different  laws  have  at  various  times  been  called 

1  Ritchie  v.  Wayman,  244  111.  509,  91  N.  E.  695  (1910). 

2  Miller  v.  Wilson,  236  U.  S,  373,  35  Sup.  Ct.  342  (1915). 


HOURS  OF  LABOR  247 

"class  legislation"  because  they  included  only  factories  and 
laundries,  and  because  they  excluded  mercantile  establish- 
ments, canneries,  stenography,  and  domestic  service.  The 
courts  have  given  but  little  weight  to  this  type  of  objection, 
asserting  the  freedom  of  the  legislature  either  to  use  discretion 
in  enlarging  the  scope  of  the  laws  l  or  to  single  out  those  groups 
of  workers  most  in  need  of  protection.2 

In  an  Oregon  case  the  constitutionality  of  regulation  of 
women's  hours  by  a  commission  has  been  attacked  on  the 
ground  that  substituting  commission  for  court  authority  on 
questions  of  fact  takes  property  without  "due  process  of  law." 
The  state  supreme  court  sustained  the  method,  holding  that 
it  contained  the  essentials  of  due  process,  which  it  defined  as 
"reasonable  notice  and  a  fair  opportunity  to  be  heard  before 
some  [proper]  tribunal."  3  The  case  was  appealed  to  the 
United  States  Supreme  Court,  where  a  favorable  decision  was 
given  in  igiy.4 

Thus  the  working-woman's  theoretical  freedom  of  contract 
to  dispose  of  her  labor  under  whatever  conditions  she  pleases 
has  been  restricted  by  the  state  through  its  police  power. 
Such  a  limitation  is  rightfully  applied  to  women  workers  as 
a  class,  because  as  workers  they  do  not  stand  on  equal  footing 
with  their  employers  in  bargaining  and  because  as  women 
their  health  is  more  quickly  injured  by  excessive  hours  of 
work.  Furthermore,  the  community  suffers  if  the  health  of 
any  large  number  of  women  is  endangered,  for  on  the  health 
of  women  depends  the  vigor  of  the  race.  The  reasonableness 
of  the  range  of  employments  included  in  the  laws  has  been 
affirmed,  and  hours  may  now  be  limited  to  as  few  as  eight  in 
daytime  work. 

(j) 


In  contrast  with  the  considerable  development  of  hour 
regulations  for  women  and  children  is  the  fragmentary  condi- 
tion of  American  legislation  affecting  the  working  hours  of 
adult  men.  One  of  the  main  reasons  for  the  halting  growth 


1  People  v.  Elerding,  254  111.  579,  98  N.  E.  982  (1912). 

2  See  Withey  v.  Bloem,  163  Mich.  419,  128  N.  W.  913  (1910). 

3  Stettler  v.  O'Hara,  69  Ore.  519,  139  Pac.  743  (1914). 

4  See  "Minimum  Wage,"  p.  210. 


248       PRINCIPLES  OF  LABOR  LEGISLATION 

of  this  type  of  law  has  been  the  doubtful  attitude  of  the  courts. 
In  this  matter,  however,  the  courts  merely  reflect  prevailing 
public  opinion,  which  is  as  yet  hardly  awake  to  the  need  of 
restricting  men's  hours  in  general  employments.  Even  trade 
unionists  are  sometimes  opposed  to  shortening  hours  for  men 
by  the  legislative  method,  through  fear  that  it  will  weaken 
union  organization. 

Most  men's  hour  laws  cover  employees  on  public  works 
or  in  transportation.  In  the  former  case  the  state  is  merely 
fixing  the  working  conditions  of  its  own  employees;  in  the 
latter,  the  element  of  public  safety  is  involved.  Where  public 
safety  is  not  directly  concerned,  legislation  is  common  only 
for  the  peculiarly  hazardous  occupation  of  mining.  As  with 
other  forms  of  protective  legislation,  however,  and  in  view 
of  our  increasing  knowledge  of  the  dangers  of  overwork, 
especially  in  continuous  industries,  the  principle  of  hour  re- 
striction, first  established  for  women  and  children,  may  even- 
tually be  extended  to  cover  all  wage-earning  men.  The  laws 
for  one  day  of  rest  in  seven,  and  the  favorable  decision  of  the 
United  States  Supreme  Court  on  an  Oregon  law  for  ten  hours 
in  manufacturing,  make  it  not  unlikely  that  a  period  of  hour 
regulation  for  adult  male  workers  has  begun. 

a.  Public  Work.  The  first  attempt  legally  to  regulate  the 
working  hours  of  men  in  the  United  States  was  the  executive 
order  of  President  Van  Buren  in  1840,  stipulating  a  ten-hour 
day  in  government  navy-yards.1  Since  the  early  'thirties 
special  pressure  had  been  brought  to  bear  upon  the  federal 
government  to  shorten  the  working  day,  partly  because  it  was 
felt  that  the  short  workday  in  public  employments  would 
have  a  strong  influence  in  reducing  hours  in  private  industry, 
and  partly  because  there  was  little  doubt  of  the  government's 
right  to  regulate  the  hours  of  its  own  employees.  In  1840, 
therefore,  while  the  eleven-  and  twelve-hour  days  were  the 
rule  in  private  industry,  Van  Buren  was  induced  to  issue  the 
order  referred  to.  Although  this  was  done  at  a  time  of  indus- 
trial depression,  he  requested  that  no  corresponding  reduction 
in  wages  be  made. 

It  was  not,  however,  until  1868  that  Congress  took  action 

1  Documentary  History  of  American  Industrial  Society,  Tohn  R.  Com- 
mons, ed.,  Vol.  VIII,  p.  85. 


HOURS  OF  LABOR  249 

on  the  question  and  provided  that  "eight  hours  shall  con- 
stitute a  day's  work  for  all  laborers,  workmen,  and  mechanics 
who  may  be  employed  by  or  on  behalf  of  the  government  of 
the  United  States."1  The  law  did  not  work  as  well  as  its 
advocates  had  hoped.  Although  it  applied  to  contractors 
and  subcontractors,  it  failed  to  prohibit  agreements  for  over- 
time work.  Its  ineffectiveness  in  actually  reducing  the  hours 
of  any  considerable  number  of  government  employees  soon 
became  apparent,  but  it  was  not  until  August  i,  1892,  that  a 
more  effective  law  covering  these  classes  of  employees  was 
passed.  This  act 2  was  mandatory,  applied  to  contractors  and 
subcontractors,  and  provided  a  heavy  penalty  for  violations. 
It  did  not,  however,  apply  to  work  done  on  that  very  large 
class  of  goods  or  materials  purchased  by  the  government, 
such  as  army  and  navy  equipment,  vessels  of  war,  clothing, 
boots,  shoes,  and  paper.  The  attorney-general  also  ruled  that 
the  act  did  not  apply  to  work  done  on  materials  purchased 
by  contractors.  Moreover,  contractors  themselves  were  con- 
stantly making  use  of  the  undefined  term  "emergency"  as  an 
excuse  for  working  employees  overtime.3  Agitation  for  a  more 
inclusive  measure  was  initiated  and  continued  for  twenty 
years  before  the  law  was  rewritten.  Finally  the  act  of  June 
19,  1912,  required  that  an  eight-hour  provision  be  inserted  in 
all  contracts  which  may  involve  the  employment  of  laborers 
or  mechanics  when  made  by,  for,  or  on  behalf  of  the  federal 
government,  its  territories,  or  the  District  of  Columbia.  Ex- 
ception was  made  in  the  case  of  contracts  for  transportation 
by  land  or  water,  for  the  transmission  of  intelligence,  or  for 
the  purchase  of  supplies  which  could  be  bought  in  the  open 
market,  except  armor  and  armor  plate.4  Provision  was  also 
made  f or »"  emergencies  caused  by  fire,  famine,  or  flood,  by 
danger  to  life  or  property,"  or  by  any  other  extraordinary 


1  United  States,   Revised  Statutes,    1878,   Title  43,   Sec.   3738.     See 
United  States  Commissioner  of  Labor,  Second  Special  Report,  1 896. 

2  United  States,  Compiled  Statutes,  1901,  Sec.  3738. 

3  Report  of  Industrial  Commission,  1902,  Vol.  XIX,  p.  792. 

4  See  opinions  of  attorney -general  since  1912.     One  opinion  held  that 
under  the  appropriation  act  of  June  6,  1912,  where  contracts  for  ammuni- 
tion are  made,  the  eight-hour  provision  relates  to  employees  only  when 
they  are  engaged  on  that  particular  government  work  and  that  they 
may  work  longer  hours  for  their  employers  (when  contractors)  on  non- 
government work. 


250       PRINCIPLES  OF  LABOR  LEGISLATION 

event  or  condition  on  account  of  which  the  President  shall 
subsequently  declare  the  violation  to  have  been  excusable. 
One  year  later  dredging  and  rock-excavating  in  rivers  and  har- 
bors of  the  United  States,  which  had  been  excluded  from  the 
eight-hour  law  of  1892  by  a  Supreme  Court  decision,1  were 
specifically  brought  under  the  operation  of  the  new  federal 
act.  But  Congress  empowered  the  President  during  the  war 
to  suspend  the  eight-hour  law  "in  case  of  national  emergency," 
with  pay  at  the  rate  of  time  and  a  half  for  all  work  in  excess  of 
eight  hours,  and  this  privilege  was  frequently  exercised.2 

Effective  restriction  of  hours  of  labor  was  secured  for 
certain  groups  of  post-office  employees  before  it  was  for 
federal  laborers  and  mechanics.  As  early  as  1888  hours  of 
city  letter-carriers  were  reduced  from  ten  to  eight,  with  the 
proviso  that  pay  be  not  reduced  and  that  extra  remuneration 
at  the  new  rate  be  given  for  overtime.  In  1912  the  eight-hour 
day  was  extended  to  clerks  in  first  and  second  class  post-offices, 
work  to  be  performed  within  ten  consecutive  hours. 

In  1915  legislation  to  restrict  the  amount  of  work  which 
might  be  exacted  of  federal  employees  took  a  new  turn.  In 
addition  to  the  earlier  laws  limiting  the  number  of  hours  a 
day  that  could  be  worked,  clauses  were  enacted  tending  to 
limit  the  speed  and  intensity  of  the  labor.  In  the  appropria- 
tion bills  for  both  the  army  and  the  navy,  provisos  were  in- 
serted that  none  of  the  money  was  to  be  used  to  pay  any 
officer  "while  making  or  causing  to  be  made,  with  a  stop- 
watch or  other  time-measuring  device,  a  time  study  of  any 
job  of  any  .  .  .  employee  ...  or  of  the  movements  of  any  such 
employee  while  engaged  upon  such  work."  It  was  also  stipu- 
lated in  both  bills  that  money  was  not  to  be  used  to  pay 
bonuses  or  cash  rewards,  except  for  suggestions  resulting  in 
improvements  in  the  service.3  Similar  provisions  against  the 
methods  of  so-called  "scientific  management"  were  made 
annually  thereafter. 

The  movement  for  a  shorter  workday  on  public  employ- 
ments was  early  taken  up  by  the  various  states,  until  by  the 

1  Ellis  v.  United  States,  206  U.  S.  246,  27  Sup.  Ct.  600  (1907). 
United  States,  Laws  1916-1917,  C.  180. 

United  States,  Laws  1914-1915,  C.  83,  section  on  Increase  of  the 
JNavy;  C.  143,  section  on  Ordnance  Department. 


HOURS  OF  LABOR  251 

end  of  the  'nineties  a  dozen  states  and  several  cities  had  eight- 
hour  enactments.1  But  the  early  state  laws,  like  those  of  the 
federal  government,  were  often  faulty  and  unenforceable. 
The  turning-point  was  the  Kansas  law  of  1891,  which  con- 
tained practically  all  of  the  essentials  of  an  enforceable  act. 
This  measure  not  only  fixed  hours  of  labor  on  direct  work  for 
the  state,  but  also  extended  its  provisions  to  municipal  cor- 
porations and  to  contractors  for  public  works,  and  imposed 
a  penalty  for  violations  by  any  public  official  or  contractor. 

At  present  over  half  of  the  states  have  eight-hour  laws  for 
employees  on  public  works.2  In  practically  all  cases  the  laws 
apply  to  both  direct  and  contract  work,  to  "the  state  or  any 
political  subdivision  thereof,"  and  cover  "all  manual  labor- 
ers" or  all  "laborers,  workmen,  and  mechanics,"  and  oc- 
casionally all  classes  of  labor.  Frequently  certain  classes  of 
employees  are  excepted,  as  firemen,  policemen,  and  certain 
classes  of  workmen  in  state  institutions.  Provision  is  almost 
always  made  for  overtime  in  case  of  "emergencies,"  frequently 
defined  as  "imminent  danger  to  property,  life,  or  limb";  but 
unless  a  clear  definition  of  the  term  is  given,  advantage  may 
easily  be  taken  of  the  exception  to  permit  unnecessary  over- 
time. 

Massachusetts  adopted  a  somewhat  different  principle  when 
the  legislature  in  1909  fixed  a  nine-hour  day  for  cities  and 
towns,  but  gave  them  the  privilege  of  changing  to  the  eight- 
hour  day  by  popular  vote.  Four  years  later  the  legislature 
provided  that  in  any  city  or  town  which  had  not  yet  accepted 
the  eight-hour  day  the  question  must  be  submitted  to  referen- 
dum at  the  next  municipal  election,  and  if  defeated  must  be 
resubmitted  every  two  years  upon  securing  a  given  number  of 
petitioners.3 

In  addition  to  the  state  laws  regulating  hours  on  public 
works,  a  large  number  of  cities  have  embodied  eight-hour 


1  Baltimore  (1866)  was  the  first  city,  and  California  (1868)  perhaps  the 
first  state,  to  adopt  this  legislation. 

2  When  an  eight-hour  law  of  this  kind  went  into  effect  in  Ohio  on  July  I, 
1915,  during  the  last  few  weeks  before  that  date  contracts  aggregating 
millions  of  dollars  were  let  by  state  and  city  departments  in  order  to 
take  advantage  of  the  lower  cost  believed  possible  under  the  old  ten-hour 
system. 

3  Massachusetts,  Laws  1913,  C.  822. 


252       PRINCIPLES  OF  LABOR  LEGISLATION 

provisions  in  their  charters  or  have  enacted  eight-hour  ordi- 
nances to  cover  municipal  work.  These  measures  follow  the 
main  lines  of  the  state  laws  and  in  addition  frequently  specify, 
among  other  things,  the  kinds  of  work  which  may  be  done 
directly  by  the  city  and  those  which  must  be  done  by  con- 
tract, rates  of  wages,  the  method  of  selecting  employees, 
whether  by  civil  service,  citizenship,  or  trade  union  member- 
ship, and  occasionally  provide  for  physical  examination  of 
applicants. 

The  two-platoon  or  twelve-hour  shift  system  for  city  fire- 
men has  made  rapid  progress  within  the  last  few  years,  and 
was  said  to  be  in  force  in  some  two  hundred  cities  and  towns 
in  October,  19 19,*  occasionally  as  the  result  of  state  law,  but 
generally  through  city  ordinance.  Agitation  for  an  eight- 
hour,  three-shift  system  was  being  carried  on  by  1919.  An 
ordinance  of  this  nature  went  into  effect  in  Cleveland,  Ohio, 
April  i,  1919.  The  various  organizations  of  firemen  had  been 
the  leaders  in  carrying  on  the  movement  for  limiting  their 
hours. 

b.  Private  Employments.  In  private  employments  the 
movement  for  legislative  restrictions  upon  the  length  of  the 
working  day  for  men,  although  associated  with  the  ten-hour 
campaigns  in  the  interests  of  both  men  and  women  in  the 
reform  agitations  of  the  'forties,  did  not  attain  national  im- 
portance before  the  period  of  the  Civil  War,  when  Ira  Steward, 
a  Boston  machinist,  inaugurated  a  nation-wide  movement  for 
the  universal  eight-hour  day  by  law.2  Scores  of  eight-hour 
leagues  sprang  up,  the  National  Labor  Union,  the  predecessor 
of  the  Knights  of  Labor,  indorsed  Steward's  plan,  and  during 
the  next  few  years  laws  were .  actually  passed  by  a  number 
of  states.  First  among  these  was  Illinois  in  1867.  These 
laws  were  not  enforceable,  and  the  movement  died  down 
until  it  was  revived  by  the  growing  Knights  of  Labor,  which, 
however,  soon  turned  the  course  of  action  away  from  the 
legislative  to  the  trade  union  method. 


1  New  York  City,  Municipal  Reference  Library  Notes,  October  I,  1919, 


P- 37- 
2F( 


or  a  full  description  of  the  history  and  philosophy  of  this  movement 
see  Documentary  History  of  American  Industrial  Society,  Vols.  IX  and  X, 
John  R.  Commons  and  John  B.  Andrews,  ed. 


HOURS  OF  LABOR  253 

During  the  past  generation  progress  has  been  made  mainly 
through  collective  bargaining  instead  of  by  legal  enactment.1 
There  have  been,  however,  important  exceptions.  Over  half 
the  states  have  enacted  laws  shortening  the  hours  of  employees 
on  steam  and  on  electric  railways,  and  more  than  a  dozen 
states  have  eight-hour  laws  for  the  protection  of  workers  in 
mines  and  smelters.  In  two  states,  also,  Mississippi  and 
Oregon,  ten-hour  laws  were  passed  in  1912  and  1913  for 
workers  in  manufacturing  industries. 

(a)  Transportation.  The  regulation  of  hours  of  labor  on 
railroads  presents  peculiar  difficulties.  Almost  invariably  em- 
ployees in  other  industries  live  sufficiently  near  their  work  to 
enable  them  to  return  home  at  night.  But  the  engineer  or 
fireman  may  find  himself  several  hundred  miles  away  from 
home  or  even  away  from  food  and  shelter  at  the  end  of  a 
stated  number  of  hours'  work.  The  problem,  therefore,  is  to 
arrange  "runs"  so  that  employees  may  at  the  end  of  their 
work  period  find  themselves  in  habitable  quarters.  The 
length  of  the  "run"  must,  of  course,  depend  somewhat  upon 
the  length  of  the  railway  division  and  upon  the  character  of 
the  country  through  which  the  road  extends. 

One  of  the  early  court  decisions  dealing  with  hours  on 
railroads  involved  the  case  of  an  engineer  who,  after  he  had 
been  on  duty  for  nearly  seventeen  hours,  was  summoned  by 
the  master  mechanic  of  the  road  to  take  out  another  train 
which  it  was  assumed  would  require  only  five  or  six  hours  of 
work.  In  reality  the  second  run  lasted  for  a  much  longer 
time,  and  on  his  return  after  thirty-one  hours'  service  his 
train  collided  with  another  train  on  the  company's  road.  On 
the  ground  of  contributory  negligence  the  court  denied  the 


1  At  the  November  elections  of  1914  in  the  Pacific  coast  states  of 
Washington,  Oregon,  and  California,  the  Socialists  secured  a  vote  on 
initiated  measures  for  the  universal  eight-hour  day.  All  of  these  measures 
were  defeated,  largely  through  the  opposition  of  the  farmer  vote.  Reso- 
lutions favoring  the  legal  eight-hour  day  for  men  were  defeated  at  both 
the  1914  and  1915  conventions  of  the  American  Federation  of  Labor, 
although  the  vote  on  the  second  occasion  was  closer.  This  action  was 
taken  largely  on  the  alleged  ground  that  if  the  legislature  may  fix  maxi- 
mum hours  of  work  it  will  also  fix  minimum  hours.  The  real  basis  of 
opposition  appeared  to  be  the  fear  that  legislative  action  would  weaken 
the  movement  for  trade  organization. 


254       PRINCIPLES  OP  LABOR  LEGISLATION 

engineer's  claim  for  damages  for  injuries  he  sustained.1  Such 
situations  have  not  been  infrequent  and  runs  of  thirty-six,  fifty, 
seventy,  and  at  times  even  one  hundred  hours  have  been  re- 
corded.2 These  excessive  hours  have  often  resulted  in  serious 
accidents  and  great  loss  of  life,  and  accordingly  the  first  dec- 
ade of  the  twentieth  century  saw  the  enactment,  under  the 
influence  of  the  powerful  railroad  brotherhoods,  of  many  laws 
regulating  the  length  of  the  working  day  for  railroad  em- 
ployees. 

Although  the  legislation  is  of  comparatively  recent  date, 
already  over  half  of  the  states  of  the  tlnion  have  placed  such 
acts  upon  their  statute  books.  This  legislation  relates  usually 
to  two  classes  of  employees,  those  directly  connected  with  the 
handling  of  trains,  such  as  engineers,  firemen,  conductors,  and 
brakemen,  and  those  connected  with  directing  the  movements 
of  trains,  such  as  despatchers,  telegraphers,  and  signal-men. 

Considerable  uniformity  exists  in  these  legal  restrictions. 
For  men  actually  handling  the  trains  the  majority  of  states 
make  sixteen  hours  the  maximum  limit  for  a  day's  work,  to 
be  followed  by  eight  or  ten  consecutive  hours  of  rest.  Cer- 
tain classes  of  employees,  such  as  those  on  sleeping-cars, 
baggage-cars,  -  or  wrecking-trains,  are  frequently  excluded, 
while  a  few  roads  under  a  specified  length  are  exempted,  as 
in  New  York,  where  the  law  applies  only  to  lines  of  thirty 
or  more  miles.  Practically  all  states  make  exceptions  in  case 
of  "emergencies,"  a  necessary  exemption,  but  one  which,  if 
not  defined,  can  easily  be  used  as  an  excuse  for  disregarding 
all  legal  limitations. 

The  second  class  of  railroad  employees  for  whom  hour 
limitations  have  been  established  by  law  are  those  connected 
with  the  movement  of  trains,  such  as  telegraphers,  despatchers, 
and  signal-men.  Great  irregularity  of  employment  exists 
among  this  class  of  workers,  since  an  operator's  work  and  dis- 
tribution of  time  will  depend  entirely  upon  the  frequency  of 
train  service  at  his  particular  station.  Here  again  legal  hours 
depend  upon  whether  or  not  employment  is  continuous.  In 

1  Smith  v.  Atchison,  Topeka  and  Santa  Fe  Railway  Co.,  39  Tex. 
Civ.  App.  468,  87  S.  W.  1052  (1905). 

1  For  a  vivid  discussion  of  this  subject  see  paper  by  A.  B.  Garretson, 
American  Labor  Legislation  Review,  Vol.  IV,  No.  i,  pp.  120-128. 


HOURS  OF  LABOP  255 

the  case  of  continuous  employment  hours  are  usually  limited 
to  eight  a  day,  and  frequently  the  three-shift  system  is  used, 
particularly  in  the  larger  railroad  centers.  If  employment  is 
not  continuous,  or  if  offices  are  open  only  in  the  daytime, 
hours  are  usually  limited  to  twelve  or  thirteen  a  day,  to  be 
followed  by  a  rest  period  of  eight  or  ten  hours,  as  with  train- 
men. Most  states  make  a  few  exceptions  or  allow  overtime 
for  limited  periods,  while  two  or  three  restrict  hours  only 
where  a  certain  number  of  trains,  as  eight  passenger  or  twenty 
freight  trains,  pass  daily. 

Railroad  employees  on  interstate  lines  are  protected  by  a 
federal  statute,  enacted  on  March  4,  1907,  applying  to  all 
"persons  actually  engaged  in  or  connected  with  the  move- 
ment of  any  train"  in  the  District  of  Columbia,  or  in  any 
territory  of  the  United  States,  or  on  interstate  lines.1  By 
this  act  hours  are  limited  to  sixteen  a  day,  with  certain  pro- 
visions for  rest  periods; 2  but  no  train-despatcher,  telegrapher, 
or  any  employee  who  transmits  messages  or  orders  by  tele- 
graph or  telephone  "shall  be  required  or  permitted  to  be  or 
to  remain  on  duty  for  a  longer  period  than  nine  hours"  in 
places  continuously  operated  day  and  night,  nor  for  more  than 
thirteen  hours  in  places  operated  only  during  the  daytime. 
Overtime  in  cases  of  emergency,  which  is  carefully  defined  in 
the  act,  may  be  permitted  for  four  additional  hours  on  not 
more  than  three  days  a  week.  The  Interstate  Commerce 
Commission  is  charged  with  the  duty  of  enforcing  the  act, 
and  it  may  require  reports  of  violations  and  of  the  causes  for 
overtime,  and  may,  after  full  hearing,  extend  the  period  of 
permitted  overtime  in  special  cases.  By  the  operation  of  the 
federal  act  the  great  majority  of  railroad  employees,  even  in 
states  without  hour  limitation  laws,  are  protected,  since  but  few 
employees  are  engaged  in  intrastate  train  service  exclusively. 

But  this  law  was  to  some  extent  superseded  by  the  so-called 
"Adamson  law,"  providing  a  basic  eight-hour  day  for  rail- 
road trainmen,  which  was  adopted  by  Congress  September  2, 
19 16.3  Unusual  public  interest  was  attached  to  the  passage 
of  the  law,  which  was  rushed  through  Congress  at  President 

1  United  States,  Laws  1906-1907,  C.  2939. 

*See  "Rest  Periods,"  p.  272. 

8  United  States,  Laws  1916,  C.  436. 


256       PRINCIPLES  OF  LABOR  LEGISLATION 

Wilson's  request  in  order  to  avert  a  nation-wide  railroad  strike 
which  had  been  called  for  September  4,  the  issue  being  the 
basic  eight-hour  day  which  was  demanded  by  the  men  and 
refused  by  the  officials.  The  law  fixed  eight  hours  as  the 
standard  for  a  day's  work,  and  forbade  the  reduction  of  wages 
because  of  the  change  until  after  an  investigating  commission 
created  by  the  act  had  reported.  It  was  immediately  claimed 
by  opponents  of  the  law  that  it  was  not  really  a  measure  for 
reducing  hours,  but  a  subterfuge  for  increasing  wages.  The 
report  of  the  commission  created  by  the  act,  submitted  to  the 
President  on  December  29,  1917,  showed  that  both  wage 
increases  and  hour  reductions  had  occurred  among  the  more 
than  300,000  employees  affected  by  the  law.1  The  hour  re- 
ductions were  most  frequent  among  employees  working  in 
railroad  freight-yards.  Reports  covering  175,744  miles  of 
road  showed  that  11,390  yard  crews  had  been  placed  on  eight- 
hour  shifts,  and  only  3,486  crews  were  still  working  more  than 
eight  hours.  According  to  a  special  study  on  wages  covering 
69,202  employees,  12.6  per  cent,  received  no  increases  in 
January,  1917,  as  a  result  of  the  law,  and  30.2  per  cent,  re- 
ceived less  than  $10  a  month.  The  largest  increases,  averag- 
ing 24.6  per  cent.,  were  received  by  freight-yard  crews,  the 
smallest, 2. 7  per  cent., by  employees  in  passenger-train  service.2 
Somewhat  akin  to  the  problem  of  the  trainman  is  that  of 
the  motorman  and  conductor  on  street  railways.  Until  the 
early  'eighties,  hours  for  street-car  employees  were  commonly 
from  twelve  to  fourteen  a  day,  and  often  ran  as  high  as  sixteen 
to  eighteen.  In  1864  a  coroner's  jury  in  the  city  of  Philadel- 
phia, passing  upon  a  fatal  accident,  said:  "Nor  should  we 
expect  vigilance  and  attention  from  employees  worn  out  by 

1  United  States  Commission  on  Standard  Work  Day  of  Railroad  Em- 
ployees, Created  by  Act  of  Congress,  approved  Sept.  3  and  5,  1916,  Stat. 
L.f  p.  721,  Sec.  2.  Report  of  Uie  Eight-hour  Commission,  Washington, 
1918,  503  PP. 

2,A  new  method  and  a  new  form  of  regulation  of  the  hours  of  railroad 
employees  is  illustrated  by  the  order  of  June  9,  1919,  by  the  Kansas 
Public  Utilities  Commission,  requiring  freight  stations  in  Topeka  to  cease 
receiving  freight  at  4  P.M.  every  weekday  except  Saturday.  The  order 
was  given  to  enable  the  freight  handlers  to  finish  their  day's  work  at  a 
reasonable  hour.  jfThe  commission  stated  that  the  matter  was  "largely 
a  social  question,"  and  that  whenever  possible  individuals  should  have 
the  evenings  free,  since  these  by  custom  were  devoted  to  "recreation, 
self-improvement,  and  the  family  circle." 


HOURS  OF  LABOR  257 

seventeen  hours  of  incessant  labor. . . .  The  constant  occurrence 
of  passenger  railway  accidents  demands  from  this  jury  an 
unequivocal  condemnation  of  the  companies  who  compel  men 
to  do  work  to  which  the  bodily  and  mental  frame  is  not  usually 
equal."  l 

During  the  'eighties  the  states  began  to  enact  legislation 
on  the  subject,  until  now  about  a  dozen  laws  have  been  passed 
limiting  hours  usually  to  ten  or  twelve  a  day.  Most  of  these 
acts  provide  for  overtime  in  case  of  unexpected  emergencies, 
and  many  require  extra  compensation  for  such  emergency 
work,  but  very  few  give  adequate  attention  to  the  equitable 
distribution  of  working-time.  Although  street-car  service  is 
one  of  the  most  constant  forms  of  employment,  the  public 
demands  not  only  regularity,  but  also  additional  service  at 
the  rush  periods  of  the  day,  on  Sundays  and  holidays,  after 
the  theater,  for  excursions,  public  games,  or  special  celebra- 
tions, and  on  many  other  occasions,  most  of  which  do  not 
occur  with  any  degree  of  regularity.  Men  must  be  employed 
to  meet  these  irregular  and  often  unexpected  demands.  For 
this  purpose  a  long  waiting-list  is  usually  kept,  and  men  are 
employed  and  paid  often  for  only  two  or  three  hours  at  a 
time.  The  presence  of  these  extra  men  acts  as  a  stimulus  to 
the  regular  men,  who,  for  fear  of  losing  their  jobs,  will  work 
for  a  longer  time  than  the  normal  period.  This  situation  fur- 
nishes an  additional  reason  for  the  enactment  of  legislation 
in  several  states  definitely  fixing  the  maximum  number  of 
hours  within  which  the  legal  day's  work  must  be  performed. 
Rhode  Island  in  1902  provided  that  a  day's  work  should  not 
be  longer  than  ten  hours,  completed  within  twelve  consecu- 
tive hours'  time.2  Although  this  measure  specifically  per- 
mitted contracts  for  overtime,  the  supreme  court  of  the 
state  held  the  ten-hour  day  binding  upon  all  companies,  since 
the  legislature  had  expressly  stated  its  intention  to  limit 
the  hours  of  all  employees  covered  by  the  act.3  Massa- 


1  United  States  Bureau  of  Labor,  Bulletin  No.  57,  March,  1905,  "Street 
Railway  Employment  in  the  United  States,"  Walter  E.  Weyl,  p.  610. 

2  Rhode  Island,  Laws  1902,  Cs.  1004,  1045. 

3  Opinion  to  the  governor  (In  re  Ten-Hour  Law  for  Street  Ry.  Corpora- 
tions) ,  2 4  R .  1 .  603 ,  54  A tl .  602  ( 1 902 ) .     "The  law  before  us  is  more  clearly 
within  such  power,  for  the  triple  reason  that  it  deals  with  public  corpora- 
tions, the  use  of  a  public  franchise,  and  a  provision  for  public  safety." 

17 


2S8       PRINCIPLES  OF  LABOR  LEGISLATION 

chusetts  is  among  the  more  recent  states  which  have  at- 
tempted to  meet  effectively  the  problem  of  proper  distribu- 
tion of  time.  In  1913  the  legislature  limited  working  hours 
to  nine  a  day  and  set  eleven  consecutive  hours  as  the  maxi- 
mum time  within  which  the  labor  must  be  performed.1  More- 
over, this  act  specifically  provides  that  threat  of  loss  of  em- 
ployment or  refusal  of  future  work  or  hindering  an  employee 
in  securing  other  work  will  be  considered  as  "requiring" 
overtime,  which  is  punishable  by  a  heavy  penalty. 

Another  method  of  regulating  hours  of  service  on  street 
railways  is  by  the  insertion  of  labor  clauses  in  franchises 
granted  to  railway  companies.  This  method  is  much  less 
common  in  America  than  in  European  cities.  In  Paris, 
for  instance,  one  of  the  labor  conditions  stipulated  in  ihe 
franchise  for  the  subway  was  that  daily  hours  should  not  ex- 
ceed ten.  Among  the  few  American  cities  which  have  adopted 
this  plan  are  Dallas,  where  a  twelve-hour  day,  and  Cleveland 
and  Detroit,  where  a  ten-hour  day,  were  secured  on  local  car 
lines. 

Regulation  of  hours  in  water  transportation  is  found  in  a 
federal  act  of  1913,  limiting  hours  of  deck  officers  to  nine  out 
of  twenty-four  while  in  port,  and,  except  in  emergencies,  to 
twelve  out  of  twenty-four  while  at  sea.2  The  federal  law  of 
1915  regulating  the  working  conditions  of  seamen  provides 
that  when  a  vessel  is  in  a  "safe  harbor,  nine  hours,  inclusive 
of  the  anchor  watch,  shall  constitute  a  day's  work."  3 

(b)  Mines  and  Tunnels.  During  the  past  generation  several 
states  have  taken  still  another  step  and  have  enacted  legisla- 
tion regulating  the  hours  of  labor  for  men  in  private  employ- 
ments where  the  safety  or  welfare  of  the  general  public  is  not 
involved.  This  class  of  legislation  has  been  applied  particu- 
larly to  mines,  smelters,  and  related  industries. 

The  mining  industries  occupy  an  important  position  in  the 
industrial  life  of  this  country,  since  they  employ  over  one  and 
one-half  million  workmen,  practically  all  being  adult  males. 
Coal-mining  alone  claims  nearly  one-half  the  total  number. 
Trade  union  organizations  in  both  the  coal  and  the  metal- 

1  Massachusetts,  Laws  1912,  C.  533,  as  amended  by  Laws  1913,  C.  833 

United  States,  Laws  1912-1913,  C.  118. 
3  Ibid.,  Laws  1914-1915,  C.  153. 


HOURS  OF  LABOR  259 

liferous  branches  of  this  industry  have  been  among  the  largest 
and  most  powerful  in  America. 

The  special  dangers  of  mining  have  been  frequently  pointed 
out,  as  well  as  the  greater  hazard  in  American  than  in  foreign 
mines.  It  has  been  shown,  for  instance,  that  the  average 
fatality  rate  in  coal-mining  in  the  United  States  during  the 
ten  }^ears  ending  with  1910  was  3.74  a  1,000,  in  comparison 
with  a  rate  of  2.92  for  Japan,  2.1 1  for  Germany,  1.69  for  France, 
1.36  for  Great  Britain,  1.04  for  Austria,  and  1.02  for  Belgium.1 
The  speed  of  the  American  miner  is  indicated  by  the  fact  that 
he  produces  about  five  times  as  much  coal  in  a  day  as  does 
the  miner  of  either  France  or  Belgium.  This  is  partly  due, 
however,  to  greater  use  of  machinery  and  to  the  more  recent 
development  of  American  mines,  which  permits  a  greater 
proportion  of  work  to  be  done  near  the  surface.  These  lat- 
ter conditions  are,  however,  partly  offset  by  the  fact  that 
American  miners  work  about  eighty  days  less  a  year  than  do 
the  French  and  Belgian  miners.2  Investigations  of  health 
conditions  in  the  various  branches  of  this  industry  have  re- 
vealed the  presence  of  injurious  and  explosive  dusts,  noxious 
gases,  poisonous  metals  or  chemicals,  sudden  and  wide  varia- 
tions of  temperature  and  moisture,  and  impure  air  often 
vitiated  by  powder  smoke;  in  addition  miners  are  commonly 
exposed  to  diseases  arising  from  soil  pollution  due  to  inade- 
quate sanitary  facilities.3 

Safety  and  health  dangers  in  the  mining  industries  have 
become  so  well  known  that  by  January,  1920,  sixteen  states, 
including  practically  all  in  which  the  mining  industry  is  im- 
portant, limited  hours  in  the  various  classes  of  this  work  to 
eight  in  one  day.4  Many  mines  operate  on  the  two-  or  three- 
shift  system  and  a  few  of  the  laws  make  special  provision  for 
additional  hours  at  the  time  of  changing  shifts.  These  eight- 

1  United  States  Bureau  of  Mines,  Bulletin  No.  69,  1913,  "Coal-Mine 
Accidents  in  the  United  States  and  Foreign  Countries,"  Frederick  W. 
Horton,  p.  87. 

2  Ibid.,  p.  88. 

3  S.  C.  Hotchkiss,  "Occupational  Diseases  in  the  Mining  Industry," 
American  Labor  Legislation  Review,  February,   1912,  p.   131.     See  also 
publications  of  the  United  States  Bureau  of  Mines,  Washington,  D.  C. 

4  Alaska,    Arizona,    California,    Colorado,    Idaho,    Kansas,    Missouri, 
Montana,   Nevada,  North  Dakota,  Oklahoma,  Oregon,  Pennsylvania, 
Utah,  Washington,  Wyoming. 


260       PRINCIPLES  OF  LABOR  LEGISLATION 

hour  laws  very  frequently  apply  to  all  underground  workings, 
to  smelters,  or  to  any  employment,  including  that  of  hoisting 
engineers,  involved  in  the  mining,  smelting,  or  refining  of  ores 
or  metals.1  Surface  excavations,  and  work  carried  on  at  less 
than  a  specified  depth,  such  as  150  feet  in  shaft  work  or  200 
feet  in  tunnel  work,  are  occasionally  exempted.  Although  in 
some  of  the  deeper  mines  the  heat,  moisture,  and  the  difficul- 
ties of  proper  ventilation  make  even  eight  hours  of  work  a 
positive  menace  to  health,2  no  mining  law  in  this  country  has 
attempted  to  make  any  scientific  adjustment  of  hours  based 
on  the  degrees  of  danger  in  different  classes  of  mines. 

The  beginnings  of  such  adjustment  are,  however,  to  be  seen 
in  the  laws  of  New  York,  New  Jersey,  and  Pennsylvania,  and 
a  Massachusetts  regulation,  governing  work  in  compressed  air. 
Under  all  of  these  codes  not  only  are  daily  working  hours 
regulated  by  the  degree  of  pressure  under  which  the  work  is 
done,  but  they  are  divided  into  two  equal  periods,  the  rest 
interval  between  which  also  varies  according  to  the  pressure, 
as  follows: 

Number  of  hours'     Interval  between 
work  in  24  working  periods 


//  the  pressure 
exceeds 

But  does  not 
exceed 

Normal 

21  pounds 

21  pounds 

30 

< 

30 

35 

' 

35        " 

40 

4 

40 

45 

« 

45        " 

50 

8  hours 

6 

4 

3 

2 


YI  hour 

I 

2  hours 

I ; 


(c)  Factories  and  Workshops.  As  indicated  in  the  preceding 
section,  when  legal  restrictions  do  not  directly  affect  public 
health  or  safety,  but  apply  mainly  to  the  health  of  the  in- 
dividual adult  male  workers,  we  find  fewer  legal  regulations 
in  America.  In  foreign  countries,  especially  since  the  end  of 
the  European  war,  many  laws  have  been  passed  establishing 
an  eight-hour  day  and  generally  a  week  of  forty-eight  hours 
or  less  in  the  majority  of  industrial  occupations.  The  laws 
are  about  equally  divided  between  two  types — those  which 
specify  in  detail  the  occupations  to  which  they  apply  and  the 

1  See  Arizona,  Laws  1912,  C.  28. 

2  In  the  Comstock  silver  mines  in  Nevada,  at  a  depth  of  2,000  feet, 
work  has  been  carried  on  in  short  shifts  at  a  temperature  of  150°  P.,  the 
men  being  freely  supplied  with  ice-water. 


HOURS  OP  LABOR  261 

exceptions  to  be  permitted,  and  those  which  merely  lay  down 
the  general  principle  in  the  law  and  leave  detailed  application 
and  exceptions  to  be  determined  by  administrative  orders.1 
The  first  annual  session  of  the  International  Labor  Confer- 
ence arranged  for  by  the  peace  treaty,  which  met  at  Washing- 
ton in  November,  1919,  headed  its  program  of  subjects  for 
discussion  with  the  eight-hour  day  and  adopted  a  draft  con- 
vention for  submission  to  its  members  through  the  League  of 
Nations.  This  provides  for  the  enactment  of  legislation  for 
an  eight-hour  day  and  forty-eight  hour  week  in  mines,  fac- 
tories, building,  and  transportation.  Provision  is  made  for 
overtime  in  certain  emergencies,  to  be  paid  for  at  least  at 
one  and  one-quarter  times  the  regular  rates  of  pay,  for  some 
flexibility  in  daily  hours  by  agreement  between  labor  and 
employers'  organizations,  and  for  a  possible  fifty-six-hour 
week  in  continuous  industries.  On  account  of  alleged  tardy 
development  of  industry,  a  fifty-seven-hour  week  was  allowed 
in  most  Japanese  factories  and  a  sixty-hour  week  in  India, 
while  Greece  and  Roumania  were  allowed  to  delay  in  putting 
the  eight-hour  limitation  into  effect.  The  enforcement  of  this 
convention,  together  with  the  recent  spread  of  eight-hour 
laws,  will  put  the  industrial  workers  of  western  Europe  prac- 
tically on  an  eight-hour  basis  through  legislation. 

In  contrast  to  the  European  situation,  in  the  United  States 
Alaska  alone  has  enacted  any  general  eight-hour  legislation. 
There  the  legislature  In  1917,  in  response  to  an  initiative  vote 
of  the  people,  passed  a  comprehensive  eight-hour  law,2  which 
was,  however,  shortly  thereafter  declared  unconstitutional.3 
The  general  declarations  that  eight  or  ten  hours  shall  con- 
stitute a  day's  work  in  the  absence  of  special  contracts  or 
agreements,  found  in  the  constitutions  or  statutes  of  about 
half  the  states,  amount  merely  to  a  statement  of  principles. 
They  have  practically  no  effect  upon  the  actual  length  of  the 


1  Laws  of  the  former  type  are  found  in  Czecho- Slovakia,  the  Nether- 
lands, Norway,  Switzerland,  Uruguay,  and  New  Zealand;    those  of  the 
latter  sort  in  France,  Germany,  German  Austria,  Spain,  Poland,  Portu- 
gal, Ecuador,  Panama,  Finland,  and  Russia.     Several  of  the  Australian 
states  specify  that  their  arbitration  courts  must  not  exceed  the  eight-hour 
limit  in  making  awards. 

2  Alaska,  Laws  1917,  C.  55. 

3  See  "Constitutionality,"  p.  270. 


262       PRINCIPLES  OF  LABOR  LEGISLATION 

working  day,  since  they  do  not  attempt  to  prevent  either  im- 
plied or  written  contracts  for  overtime,  nor  do  they  often  pro- 
vide a  penalty  for  violation. 

About  a  dozen  states  have  succeeded  in  regulating  by  legis- 
lation the  hours  of  adult  males  in  one  or  more  employments 
in  factories  and  workshops.  Eight-hour  laws  are  found  for 
laundries  and  electric  plants  in  Arizona,  for  stationary  fire- 
men in  Louisiana,  for  plaster  and  cement  mills  in  Arizona  and 
Nevada,  while  a  ten-hour  limit  is  placed  in  saw-  and  planing- 
mills  in  Arkansas,  in  bakeries  in  New  Jersey,  in  brick-yards 
in  New  York,  in  certain  textile  mills  in  Georgia,  Maryland, 
and  South  Carolina,  and  in  a  few  states  in  drug  and  grocery 
stores. 

Only  two  states,  Mississippi  in  IQI2,1  and  Oregon  in  ipi3,2 
have  adopted  the  ten-hour  day  (with  certain  exceptions)  for 
all  classes  of  employees  in  general  manufacturing  industries. 
The  Oregon  statute  allows  three  hours'  overtime,  provided  a 
50  per  cent,  increase  in  pay  is  given,  while  the  Mississippi  act 
as  amended  in  IQI43  permits  twenty  minutes'  overtime  on 
each  of  the  first  five  days  of  the  week,  this  time  to  be  deducted 
from  the  last  day  of  the  week. 

c.  Constitutionality.  The  two  main  legal  principles  involved 
in  the  constitutionality  of  maximum  hour  laws  for  women  are 
equally  important  in  connection  with  hour  legislation  for  men. 
There  is,  on  one  side,  the  right  of  free  contract  for  the  disposal 
of  one's  own  labor,  and  on  the  other  the  possible  limitation  of 
this  right  by  the  police  power  in  the  interests  of  social  welfare. 
While  it  is  now  definitely  settled  that  hour  legislation  for 
women  is  a  rightful  exercise  of  the  police  power  of  the  state, 
the  question  is  somewhat  more  uncertain  in  regard  to  hour  laws 
for  men.  The  constitutional  status  of  the  latter  type  of  laws 
seems  to  depend  on  the  purpose  of  the  restriction  and  the  class 
of  workers  covered.  The  courts  usually  uphold  hour  legisla- 
tion which  applies  to  public  work,  and  to  private  business  if 
the  public  safety  is  directly  concerned,  as  with  railroad  train- 
men, but  opinions  are  conflicting  on  hour  legislation  for  pri- 
vate employment  where  the  safety,  health,  or  welfare  of  the 
employees  alone  is  involved. 

1  Mississippi,  Laws  1912,  C.  157.  2  Oregon,  Laws  1913,  C.  102. 

3  Mississippi,  Laws  1914,  C.  169. 


HOURS  OF  LABOR  263 

Although  several  earlier  decisions  were  unfavorable,  in  1003 
the  United  States  Supreme  Court  upheld  the  Kansas  act  of 
1891,  which  established  the  eight-hour  day  in  public  employ- 
ment both  for  direct  and  for  contract  work.  "It  belongs," 
said  the  court,  "to  the  state,  as  guardian  and  trustee  for  its 
people,  and,  having  control  of  its  affairs,  to  prescribe  the  con- 
ditions upon  which  it  will  permit  work  to  be  done  on  its  be- 
half, or  on  behalf  of  its  municipalities."  l 

But  while  this  decision  supported  the  right  of  the  state  to 
control  the  action  of  its  political  subdivisions,  state  courts  have 
not  always  followed  its  precedent  on  this  point.  In  New 
York,  for  instance,  this  right  was  denied  on  the  ground  that 
municipal  corporations  are  local  bodies  supported  by  local 
taxes,  and  are  therefore  on  the  same  footing  as  private  cor- 
porations.2 In  order,  therefore,  that  there  might  be  no 
future  question  on  these  points,  the  people  of  the  state  in 
1905  amended  their  constitution  expressly  giving  the  legisla- 
ture the  power  to  fix  all  conditions  of  labor  on  public  work, 
whether  done  directly  by  the  state  or  through  contractors.3 
A  similar  amendment  to  the  Pennsylvania  constitution  was 
voted  down  by  the  people  in  1913.  But  on  the  whole,  de- 
cisions have  in  recent  years  followed  the  main  principles  of  the 
decision  in  Atkin  v.  Kansas. 

In  private  employments,  when  the  element  of  public  safety 
is  clearly  and  directly  involved,  as  in  most  legislation  regu- 
lating working  hours  in  transportation,  the  courts  have  raised 
but  few  objections.  Though  during  the  early  days  of  this  class 
of  legislation  opinions  varied  considerably,  the  close  connection 
between  the  safety  and  welfare  of  the  traveling  public  and 
the  physical  condition  of  these  employees  has  now  been  so 
well  established  that  recent  decisions  almost  invariably  up- 
hold the  main  principle  of  hour  limitation  as  a  valid  exercise 
of  the  police  power.  In  a  decision  given  in  1911  the  United 
States  Supreme  Court  said:  "The  length  of  hours  of  service 
has  direct  relation  to  the  efficiency  of  the  human  agencies 
upon  which  protection  to  life  and  property  necessarily  de- 


1  Atkin  v.  Kansas,  191  U.  S.  207,  24  Sup.  Ct.  124  (1903). 

2  People  ex  rel.Cossey  v.  Grout,  179  N.  Y.  417,  72  N.  E.  464  (1904). 

3  New  York,  Laws  1906,  C.  506.     Upheld  in  People  ex  rel.  Williams 
Eng.  &  Cont.  Co.  v.  Metz,  193  N.  Y.  148,  85  N.  E.  1070  (1908). 


264       PRINCIPLES  OF  LABOR  LEGISLATION 

pends.  ...  In  its  power  suitably  to  provide  for  the  safety  of 
employees  and  travelers,  Congress  was  not  limited  to  the 
enactment  of  laws  relating  to  mechanical  appliances,  but  it 
was  also  competent  to  consider,  and  to  endeavor  to  reduce 
the  dangers  incident  to  the  strain  of  excessive  hours  of  duty 
on  the  part  of  engineers,  conductors,  train-despatchers,  teleg- 
raphers, and  the  persons  embraced  within  the  class  defined 
by  the  act."  l 

Various  related  questions  arise  from  time  to  time  involving 
such  points  as  the  definition  of  emergency,2  and  the  liability 
of  the  railroad  company  in  case  of  accidents  connected  with 
overtime  work.  The  courts  have  also  had  to  consider  the 
legality  of  the  so-called  "split  trick."  They  have  held  that 
under  the  federal  law  the  permitted  hours  of  service  may  be 
divided  into  two  parts  within  the  same  twenty-four  hours.3 
In  some  cases  this  rule  has  led  to  much  practical  difficulty  in 
the  enforcement  of  the  law,  and  a  number  of  cases  have  been 
brought  into  court  in  which  train  crews  have  had  their  time 
of  service  extended  beyond  the  maximum  sixteen  hours  by 
temporary  "releases"  at  places  where  trains  were  delayed 
en  route.  In  a  recent  case  the  United  States  Circuit  Court 
of  Appeals  for  the  ninth  circuit  guarded  against  an  abuse  of 
this  practice  by  ruling  that  such  a  "release,"  to  constitute  a 
break  in  the  continuity  of  service,  must  be  sufficiently  long  to 
insure  "a  substantial  and  opportune  period  of  rest"  in  all 
circumstances.  Whether  or  not  a  "release"  was  for  such  a 
period  was  a  question  for  the  jury  to  decide  in  each  case.4 

Another  important  point  frequently  raised  is  the  division 
of  jurisdiction  between  state  and  federal  laws.  In  case  of 
conflict  between  the  provisions  of  a  state  law  and  the  federal 


1  Baltimore  and  Ohio  Railroad  Co.  v.   Interstate  Commerce  Com- 
mission, 221  U.  S.  612,  31  Sup.  Ct.  621  (1911). 

2  United  States  v.  Chicago,  Milwaukee  and  Puget  Sound  R.  R.  Co., 
197  Fed.  624  (1912);   United  States  v.  Kansas  City  Southern  R.  R.  Co., 
202  Fed.  828,  121  C.  C.  A.  136  (1913). 

3  United  States  v.  Atchison,  Topeka  and  Santa  Fe  R.  R.  Co.,  220  U.  S. 
37,  31  Sup.  Ct.  362  (1911).     In  this  decision  the  United  States  Supreme 
Court  upheld  the  practice  of  a  railroad  company  in  requiring  telegraph 
operators  to  be  on  duty  from  6.30  A.M.  to  12  M.  and  again  from  3  to 

6.30   P.M. 

4  United  States  v.  Southern  Pacific  Co.,  136  C.  C.  A.  351,  220  Fed.  745 
(1915). 


HOURS  OP  LABOR  26$ 

act,  the  higher  courts  have  practically  always  given  precedence 
to  the  federal  act,  largely  because  of  the  difficulty  of  separat- 
ing interstate  from  intrastate  operations.  But  where  no  con- 
flict exists  both  laws  may  operate  at  the  same  time.  Among 
the  later  decisions  on  this  subject  is  a  New  York  case,  carried 
to  the  United  States  Supreme  Court,  involving  the  validity 
of  the  New  York  eight-hour  law  for  train-despatchers.  In  this 
case  the  New  York  court  held  that  the  act  was  a  valid  exer- 
cise of  the  police  power,  and  that  no  conflict  existed  between 
state  and  federal  authority  since  the  federal  law  limiting  hours 
to  nine  a  day  "  prescribed  a  general  minimum  limit  of  safety 
applicable  to  average  conditions  throughout  the  country," 
whereas  the  New  York  statute  limiting  hours  to  eight  a  day 
"simply  supplemented"  the  federal  act  by  raising  the  limit  of 
safety  in  response  to  conditions  prevailing  within  the  borders 
of  the  state.1  On  appeal  the  United  States  Supreme  Court 
on  May  25,  1914,  gave  a  unanimous  opinion  denying  the  con- 
stitutionality of  the  New  York  act,  as  in  direct  conflict  with 
the  federal  act,  holding  that  "Where  there  is  conflict  the  state 
legislation  must  give  way.  Indeed,  when  Congress  acts  in 
such  a  way  as  to  manifest  its  purpose  to  exercise  its  con- 
stitutional authority  the  regulating  power  of  the  state  ceases 
to  exist."  2  0n  the  ptint  made  by  the  New  York  court  that 
the  state  law  merely  supplemented  the  federal  act,  the  federal 
court  said :  "  It  is  not  that  there  may  be  a  division  of  the  field 
of  regulation,  but  an  exclusive  occupation  of  it  when  Con- 
gress manifests  a  purpose  to  enter  it.  ...  It  [the  federal  act] 
admits  of  no  supplement;  it  is  the  prescribed  measure  of  what 
is  necessary  and  sufficient  for  the  public  safety  and  of  the  cost 
and  burden  which  the  railroad  must  endure  to  secure  it." 
Another  contention  made  by  the  New  York  court  was  that 
in  any  case  the  federal  law  had  not  become  operative  at  the 
time  of  the  alleged  violation,  November  i,  1907.  But  the 
federal  court  said  that  it  "considered  it  elementary  that  the 
police  power  of  the  state  could  only  exist  from  the  silence  of 
Congress  upon  the  subject  and  ceased  when  Congress  acted 

1  People  v.  Erie  R.  R.  Co.,  198  N.  Y.  369,  91  N.  E.  849  (1910).     See 
also  Smith  v.  Alabama,  124  U.  S.  465,  8  Sup.  Ct.  564  (1888). 

2  Erie  R.  R.  Co.  v.  New  York,  233  U.  S.  671,  34  Sup.  Ct.  756  (1914). 
See  also  Minnesota  Rate  Cases,  230  U.  S.  352,  33  Sup.  Ct.  729  (1913). 


266       PRINCIPLES  OF  LABOR  LEGISLATION 

or  manifested  its  purpose  to  call  into  play  its  exclusive  power."  l 
The  important  question  as  to  whether  the  New  York  act  was 
a  valid  exercise  of  the  control  reserved  by  the  state  over  cor- 
porate charters  was  also  raised  in  these  cases,  but  no  conclu- 
sive decision  was  reached  in  either  court. 

The  Adamson  law  was  treated  by  the  majority  of  the  Su- 
preme Court  as  an  extension  of  hour  legislation  for  interstate 
railroad  employees,  the  Chief  Justice  declaring  that  "the 
authority  to  permanently  establish  it  [the  basic  eight-hour 
day]  is  so  clearly  sustained  as  to  render  the  subject  not  dis- 
putable." The  ground  for  the  objection  of  the  four  dissenting 
judges  was  that  the  measure  was  not  an  hour  but  a  wage- 
fixing  statute.  The  majority  upheld  the  regulation  of  wages 
contained  in  the  law  on  the  ground  that  the  constitution  gave 
Congress  power  over  interstate  commerce  to  preserve  it,  and 
that  any  act  necessary  to  its  preservation  is  constitutional. 
They  also  characterized  the  law  "as  the  exertion  by  Congress 
of  the  power  which  it  undoubtedly  possessed  to  provide  by 
appropriate  legislation  for  compulsory  arbitration."  2 

The  right  to  limit  the  working  hours  of  men  in  mines  has 
been  practically  undisputed  since  the  case  of  Holden  v.  Hardy 
in  1898  upholding  the  Utah  eight-hour  law  for  this  group  of 
workers.3  This  case  has  such  an  important  beating  upon  the 
right  to  limit  the  hours  of  adult  men  in  general  employments 

1  See  also  Northern  Pacific  Ry.  v.  Washington,  222  U.  S.  370,  32  Sup. 
Ct.  160  (1912). 

2  Wilson  v.  New,  243  U.  S.  332,  37  Sup.  Ct.  289  (1917). 

3  Holden  v.  Hardy,  169  U.  S.  366,  18  Sup.  Ct.  564  (1898).     Immediately 
after  this  favorable  decision  by  the  United  States  Supreme  Court,  Colo- 
rado enacted  a  law  identical  with  the  Utah  statute.     One  year  later  the 
Colorado  Supreme  Court  in  an  elaborate  opinion  refused  to  conform  to 
the  opinion  of  the  United  States  Supreme  Court  and  declared  the  act 
unconstitutional  on  the  ground  that  public  welfare  was  not  involved, 
since  only  the  employee  himself  is  injured  by  long  hours  (In  re  Morgan, 
26  Colo.  415,  58  Pac.  1071  (1899)).     So  determined  were  the  miners  of 
Colorado  to  have  the  shorter  workday  guaranteed  them  by  legislation 
that  they  succeeded  in  1902  in  securing  an  amendment  to  the  constitu- 
tion providing  for  the  eight-hour  day  (Art.  5,  Sec.  25a).     Despite  this 
fact,  it  was  not  until  1905  that  the  legislature  finally  enacted  an  eight- 
hour  law.     But  not  until  1911   was  an  enforceable  act  passed,  which 
was,  however,  immediately  subjected  by  the  efforts  of  the  operators  to  a 
referendum  vote.     Not  until  1913  was  the  question  finally  settled  and 
an  effective  act  in  force.     These  unfortunate  events  have  played  no  small 
part  in  creating  the  bitter  strikes  of  coal  miners  which  occurred  in  Colo- 
rado in  1913-1914. 


HOURS  OF  LABOR  .       267 

that  it  should  be  given  special  attention  at  this  point.  In 
connection  with  the  custom  of  passing  upon  the  validity  of 
state  legislation  under  the  fourteenth  amendment  to  the 
federal  constitution,  the  court  said:  "This  court  has  not  failed 
to  recognize  the  fact  that  the  law  is,  to  a  certain  extent,  a 
progressive  science;  that  in  some  of  the  states  methods  of 
procedure  which,  at  the  time  the  constitution  was  adopted, 
were  deemed  essential  to  the  protection  and  safety  of  the 
people,  or  to  the  liberty  of  the  citizen,  have  been  found  to 
be  no  longer  necessary;  that  restrictions  which  had  formerly 
been  laid  upon  the  conduct  of  individuals,  or  of  classes  of  in- 
dividuals, had  proved  detrimental  to  their  interests,  while, 
on  the  other  hand,  certain  other  classes  of  persons  (particularly 
those  engaged  in  dangerous  or  unhealthful  employments)  have 
been  found  to  be  in  need  of  additional  protection." 

Two  far-reaching  conclusions  were  set  forth  in  the  opinion 
given  in  this  case.  The  first  involved  the  question,  Are  the 
health  dangers  connected  with  the  occupation  of  mining  suffi- 
ciently serious  to  justify  the  legislature  in  separating  out  this 
class  of  employees  and  interfering  with  the  right  of  free  con- 
tract under  the  police  power  of  the  state?  On  this  point  the 
court  said:  "But  if  it  be  within  the  power  of  a  legislature  to 
adopt  such  means  (provisions  for  proper  ventilation,  speaking- 
tubes,  protection  of  cages,  etc.)  for  the  protection  of  the  lives 
of  its  citizens,  it  is  difficult  to  see  why  precautions  may  not 
also  be  adopted  for  the  protection  of  their  health  and  morals. 
It  is  as  much  for  the  interest  of  the  state  that  the  public 
health  should  be  preserved  as  that  life  should  be  made  secure. 
.  .  .  While  the  general  experience  of  mankind  may  justify  us 
in  believing  that  men  may  engage  in  ordinary  employments 
more  than  eight  hours  per  day  without  injury  to  their  health, 
it  does  not  follow  that  labor  for  the  same  length  of  time  is 
innocuous  when  carried  on  beneath  the  surface  of  the  earth; 
where  the  operative  is  deprived  of  fresh  air  and  sunlight,  and 
is  frequently  subjected  to  foul  atmosphere  and  a  very  high 
temperature,  or  to  the  influence  of  noxious  gases  generated 
by  the  process  of  refining  or  smelting." 

The  second  conclusion  relates  to  inequality  of  bargaining 
power,  already  treated  in  Chapter  I. 

As  to  regulation  of  men's  hours  in  general  factory  emplciy- 


268       PRINCIPLES  OF  LABOR  LEGISLATION 

ments,  the  constitutionality  of  a  ten-hour  daily  limit  is  now 
assured  through  favorable  action  by  the  United  States  Supreme 
Court  on  the  Oregon  ten-hour  law.1  Eight-hour  legislation 
has  not  yet  been  passed  on  by  the  highest  court  in  the  land, 
and  its  status  remains  uncertain.  In  the  argument  against 
the  ten-hour  law  it  was  contended  that  the  measure  was  not 
a  health  but  a  wage  law,  as  it  permitted  three  hours  of  over- 
time at  increased  rates  of  pay.  But  the  court  ruled  that, 
"apparently  the  provisions  for  permitting  labor  for  the  over- 
time on  express  conditions  were  made  in  order  to  facilitate 
the  enforcement  of  the  law,  and  in  the  nature  of  a  mild  penalty 
for  employing  one  not  more  than  three  hours  overtime." 
The  decision  of  the  state  court  upholding  the  act  was  quoted 
to  the  effect  that  the  hours  in  some  other  countries  were  less 
than  those  prescribed  by  the  act  and  that  a  ten-hour  day  was 
sanctioned  by  custom  in  local  industries,  so  that  the  regulation 
could  not  be  held  to  be  unreasonable  or  arbitrary.  The  con- 
tention that  the  law  discriminated  against  factories  and  other 
employments  covered  by  requiring  them  to  pay  more  for  labor 
was  disposed  of  by  the  fact  that  the  law  was  an  hours  and  not 
a  wages  act. 

The  decision  in  effect  reversed  the  ruling  of  the  court  twelve 
years  before  in  the  celebrated  Lochner  case,  in  which  a  New 
York  law  providing  a  ten-hour  day  for  bakers  was  overthrown.2 
A  careful  reading  of  the  earlier  opinion  discloses,  however,  that 
the  court  did  not  feel  that  sufficient  evidence  was  presented 
to  it  indicating  the  injurious  effect  upon  the  health  of  bakers 
to  justify  the  state  in  singling  them  out  and  interfering  with 
their  freedom  of  contract.  Evidence  on  the  health  dangers  of 
long  hours  and  the  beneficial  effects  of  the  short  workday  was 
amply  supplied  in  the  Oregon  case  in  a  brief  prepared  by 
Felix  Frankfurter  and  Josephine  Goldmark,  similar  in  nature 
to  the  Brandeis-Goldmark  briefs  presented  in  the  minimum 
wage  and  women's  hour  law  cases.3 

The  Mississippi  law  of  1912, 4  limiting  hours  of  all  employees 
engaged  in  manufacturing  or  repairing  to  ten  a  day,  but 

|  Bunting  r.  Oregon,  243  U.  S.  246,  37  Sup.  Ct.  435  (1917). 
|  Lochner  v  New  York,  198  U.  S.  45,  25  Sup.  Ct.  539  (1905). 
1  See  pp.  218  and  246. 
4  Mississippi,  Laws  1912,  C.  157. 


HOURS  OF  LABOR  269 

excepting  cases  of  emergency  or  public  necessity,  was  three 
times  taken  to  the  state  supreme  court  and  was  each  time  up- 
held. The  court  held  that  it  was  not  bound  by  Lochner  v. 
New  York,  since  in  the  law  decided  against  in  that  case  no 
provision  was  made  for  emergencies  under  which  the  "lightest 
violation  of  the  provisions  of  the  act  would  be  innocent." 
The  court  also  called  attention  to  the  physical  and  mental 
strain  of  present-day  industry  as  compared  with  earlier 
methods.  One  of  the  few  instances  where  a  court  has  specifi- 
cally recognized  the  right  to  leisure  occurred  in  this  case, 
when  the  court  said : 

We  pause  here  to  remark  the  notable  fact  that  it  is  rare  for  the  seller 
of  labor  to  appeal  to  the  courts  for  the  preservation  of  his  inalienable 
rights  of  labor;  this  inestimable  privilege  is  generally  the  object  of 
the  buyer's  disinterested  solicitude.  Some  day,  perhaps,  the  in- 
alienable right  to  rest  will  be  the  subject  of  litigation,  but  as  yet  this 
phase  of  individual  liberty  has  not  sought  shelter  under  the  state  or 
federal  constitutions.1 

The  case  of  eight-hour  legislation  for  men  in  general  employ- 
ments had  not,  up  to  January,  1920,  been  passed  upon  by 
the  United  States  Supreme  Court.  The  early  unenforceable 
eight-  and  ten-hour  laws  were  generally  upheld  by  the  courts, 
but  when  Nebraska  in  1891  attempted  to  make  such  a  law 
enforceable  by  requiring  double  pay  for  all  work  in  excess  of 
eight  hours,  farm  and  domestic  labor  being  excluded,  the  law 
was  declared  unconstitutional  by  the  supreme  court  of  the 
state  in  1894,  both  on  the  ground  of  class  legislation  and  as  an 
interference  with  the  right  of  free  contract.2 

In  1912  the  Supreme  Court  of  Louisiana  declared  an  hour 
law  unconstitutional  on  the  ground  of  unwarranted  classifica- 
tion of  industries.  This  act  limited  the  hours  of  stationary 
firemen  to  eight  a  day  in  manufacturing  or  business  establish- 
ments, offices,  or  warehouses  operating  day  and  night,  but 
exempted  certain  other  industries,  as  the  petroleum,  saw- 
mill, and  cotton-gin  industries,  and  sugar  plantations.3  This 
classification  of  industries  appeared  to  the  court  to  be  purely 

1  State  v.  J.  J.  Newman  Lumber  Co.,  102  Miss.  802,  59  So.  923;  103 
Miss.  263,  60  So.  215  (1912). 

z  Low  v.  Reese  Printing  Co.,  41  Neb.  127,  59  N.  W.  362  (1894). 
3  Louisiana,  Laws  1912,  No.  245. 


2  70       PRINCIPLES  OF  LABOR  LEGISLATION 

arbitrary,  since  it  was  difficult  to  see  why  long  hours  were 
not  as  injurious  in  sawmills  as  in  warehouses  or  offices.  On 
this  point  the  judge  said:  "There  is  no  suggestion  in  the 
record  that  the  occupation  of  stationary  firemen  is  dangerous 
or  unhealthy  to  such  a  degree  as  to  warrant  the  interference 
of  the  state.  .  .  .  The  toil  per  se  could  not  have  warranted  the 
interference  of  the  legislature  because  it  permitted  unlimited 
toil  in  the  plants  excepted  from  the  operation  of  the  act. 
Whatever  may  have  been  the  motive  for  the  passage  of  the 
act,  we  are  satisfied  that  it  was  not  based  on  health  con- 
siderations." 1 

Here  again  the  court  did  not  feel  that  sufficient  evidence 
was  presented  to  justify  the  classification  of  industries  as 
contained  in  the  law,  and  after  this  decision  the  legislature 
amended  the  original  law,  making  it  apply  to  all  stationary 
engineers  in  cities  with  a  population  of  50,000  or  more.2 

The  Alaskan  eight-hour  law,  which  covered  all  workers,  in- 
cluding partners  and  corporation  officials,  except  in  certain 
emergencies,  was  declared  unconstitutional  in  1918  in  a  fed- 
eral circuit  court.3  The  judge  held  that  the  statute,  applying 
as  it  did  to  all  occupations  alike,  was  not  shown  to  be  a  health 
measure,  but  was  a  "meddlesome  interference"  with  individ- 
ual rights.  By  interfering  with  the  right  to  earn  a  living, 
which  is  a  property  right,  it  was  held  to  have  violated  the 
fourteenth  amendment  to  the  federal  constitution.  In  addi- 
tion, it  was  declared  to  be  class  legislation,  which  was  forbidden 
by  the  organic  act  creating  the  territory.  On  similar  grounds 
the  Solicitor-General  of  the  United  States  declined  to  allow 
the  case  to  be  appealed  to  a  higher  court,  so  that  no  final  test 
was  had  on  this,  the  only  enforceable  universal  eight-hour 
law  covering  private  employment  enacted  in  America  up  to 
the  beginning  of  1920. 

But  even  though  the  constitutionality  of  eight-hour  laws 
for  men  in  general  is  still  undetermined,  the  Supreme  Court 
decision  in  the  Oregon  ten-hour  case  opens  the  way  for  much 
larger  regulation  of  the  work  of  adult  males  than  has  here- 
tofore been  undertaken  in  this  country.  Equality  of  bargain- 

1  State  v.  Barba,  132  La.  768,  61  So.  784  (1913). 

1  Louisiana,  Laws  1914,  No.  201. 

3  U.  S.  v.  Northern  Commercial  Co.  and  George  A.  Coleman  (1918). 


HOURS  OF  LABOR  271 

ing  power  may  be  secured  in  some  cases  by  freeing  labor 
organizations  from  existing  restrictions  upon  acts,  not  in  them- 
selves unlawful,  which  are  necessary  to  carry  out  effectively 
the  purposes  of  organization.1  But  where  organization  fails 
to  protect  any  considerable  group  of  workers  or  where  this 
protection  is  not  provided  in  a  reasonable  manner,  the  sub- 
stitution of  the  power  of  the  state  becomes  a  justifiable  and 
necessary  interference  with  the  right  of  free  contract,  for  the 
protection  of  health,  welfare,  and  citizenship.  Such  inter- 
ference, an  analysis  of  the  various  decisions  shows,  has  been 
generally  held  legitimate  by  the  courts.  ^_^ 

2.  REST  PERIODS 

In  spite  of  the  considerable  development  of  maximum 
hour  legislation  in  this  country,  only  slight  attention  has  been 
paid — except  for  the  recent  agitation  for  one  day  of  rest  in 
seven  and  some  efforts  to  exclude  women  and  children  from 
night  work — to  the  important  question  of  legal  rest  periods. 

(z)  Daily  Rest  and  Meal-times 

The  most  common  form  of  legal  requirement  for  daily  rest 
periods  in  private  employments  is  found  in  the  laws  regulating 
hours  of  labor  for  women.  A  number  of  states  merely  specify 
that  from  one-half  hour  to  one  hour  shall  be  allowed  for  the 
noon  meal.  Under  such  laws,  which  do  not  restrict  the  num- 
ber of  hours  of  continuous  employment,  women  have  been 
employed,  with  no  time  for  rest  and  meals,  for  periods  so  long 
as  to  be  definitely  harmful  to  their  health.  Several  states, 
therefore,  make  the  provision  more  effective  by  prescribing 
that  the  noon  rest  period  shall  be  given  after  six  or  six  and 
one-half  hours'  work.  If  overtime  is  worked  in  the  evening, 
a  few  states  require  a  rest  period  of  twenty  or  thirty  minutes 
after  6  or  7  P.M.  Most  of  the  laws  apply  to  all  females  and 
a  few  apply  both  to  boys  and  to  girls,  but  the  inclusion  of 
adult  men  workers  is  very  rare. 

In  addition  to  the  noon  rest  period  a  few  employers  have 


*See  "Justification  of  True  Collective  Bargaining,"  pp.  116-119. 


272       PRINCIPLES  OF  LABOR  LEGISLATION 

voluntarily  granted  to  employees,  especially  to  women,  a 
fifteen-  or  twenty-minute  rest  in  the  middle  of  the  morning 
and  again  in  the  afternoon;  but  no  legal  regulations  to  this 
effect  exist  in  America.  In  European  countries,  however,  the 
beneficial  effects  of  these  shorter  breaks  in  the  workday  have 
been  recognized  in  legislative  enactments.  In  Belgium,  for 
instance,  women  in  fruit-preserving  must  be  allowed  at  least 
fifteen  minutes'  rest  in  every  five-hour  work  period  in  addition 
to  the  noon  rest.  In  the  chocolate  and  confectionery  industry 
a  second  rest  period  of  fifteen  minutes  in  addition  to  the  noon 
rest  must  be  allowed  if  the  working  day  is  between  nine  and 
ten  hours  long,  and  a  third  rest  period  of  the  same  length 
must  be  given  if  the  hours  exceed  ten.  Such  rest  periods  may, 
under  the  increasing  strain  and  complexity  of  modern  industry, 
add  much  to  both  the  physical  welfare  and  the  efficiency  of 
the  worker. 

For  men  workers  in  America  a  daily  rest  period  is  occa- 
sionally required  by  laws  in  the  interest  of  health  or  public 
safety.  Thus  a  daily  rest  period  as  well  as  the  maximum  limit 
of  daily  hours  is  fixed  by  law  for  railroad  employees.  Train- 
men must  be  allowed  ten  hours'  rest  after  sixteen  hours'  con- 
secutive employment,  but  if  they  have  been  at  work  for  an 
aggregate  of  sixteen  hours  with  brief  intervals  between,  the 
rest  period  need  be  only  eight  hours.  Several  states  make  no 
distinction  between  consecutive  and  aggregate  employment, 
but  set  a  fixed  period  of  eight  or  ten  hours'  rest  after  sixteen 
hours  of  work,  while  a  few  other  states  require  this  rest  period 
after  thirteen,  fourteen,  or  fifteen  hours  on  duty.  In  addition 
a  few  states,  including  Massachusetts,  Maryland,  and  New 
York,  have  enacted  laws  requiring  that  telegraphers,  switch- 
men, and  others  directing  the  movement  of  trains  be  given  a 
rest  period  of  twenty-four  consecutive  hours  twice  each 
month,  without  reduction  of  pay.1  In  New  York,  New  Jer- 
sey, Pennsylvania,  and  Massachusetts,  where  tunnel  and  cais- 

1  The  New  York  law  was,  however,  held  unconstitutional  by  the  state 
appellate  division,  third  department,  in  People  v.  N.  Y.  C.  &  H.  R.  R.  R. 
Co.,  163  App.  Div.  79  (1914),  on  the  ground  laid  down  by  the  United 
States  Supreme  Court  in  Erie  R.  R.  Co.  v.  New  York,  233  U.  S.  671,  34 
Sup.  Ct.  756  (1914),  that  "there  can  be  no  valid  state  legislation  covering 
the  same  field  where  the  federal  authority  has  asserted  its  right  to  act." 
(See  pp.  264-266.) 


HOURS  OF  LABOR  273 

son  operations  have  been  scientifically  regulated,  the  hours  of 
workers  in  compressed  air  must  be  equally  divided  by  a  rest 
period  varying  in  length  from  one-half  hour  to  five  hours, 
according  to  the  degree  of  air  pressure.1 

(2)  Night  Work 

Night  work  legislation  applies  only  to  women  and  minors, 
there  being  no  regulation  of  the  work  of  adult  men  in  this 
respect. 

The  investigations  of  the  International  Association  for  Labor 
Legislation,  begun  in  1901,  showed  that  serious  physical  and 
moral  dangers  surrounded  the  work  of  women  at  night.  It  was 
clearly  demonstrated  that  recovery  from  fatigue  is  obtained 
mainly  through  rest  and  sleep,  and  that  sound  sleep  can 
rarely  be  secured  in  the  daytime,  especially  in  the  noisy  and 
crowded  homes  of  many  working  people  in  industrial  cities. 
The  lack  of  sunlight  tends  to  produce  anaemia  and  tuberculosis 
and  to  predispose  to  other  ills.  Night  work  brings  increased 
liability  to  eye  strain  and  accident.  Serious  moral  dangers 
also  are  likely  to  result  from  the  necessity  of  traveling  the 
streets  alone  at  night,  and  from  the  interference  with  normal 
home  life.  From  an  economic  point  of  view,  moreover,  the 
investigations  showed  that  night  work  was  unprofitable,  being 
inferior  to  day  work  both  in  quality  and  in  quantity.  Wher- 
ever it  had  been  abolished,  in  the  long  run  the  efficiency  both 
of  the  management  and  of  the  workers  was  raised.2  Further- 
more, it  was  found  that  night  work  laws  are  a  valuable  aid 
in  enforcing  acts  fixing  the  maximum  period  of  employment. 

As  a  result  of  these  investigations,  the  association  called, 
through  the  Swiss  Federal  Council,  in  Berne,  in  1906,  a  con- 
ference on  woman's  night  work.  This  conference  was  at- 
tended by  representatives  of  fourteen  leading  European  pow- 
ers,3 and  an  international  convention  was  drawn  up  by  which 
the  various  countries  agreed  to  provide  as  soon  as  possible  that 

1  See  table,  p.  260. 

2  See  the  brief  in  the  case  of  People  v.  Charles  Schweinler  Press,  by 
Louis  D.  Brandeis  and  Josephine  Goldmark,  pp.  260-307. 

3  Austria,    Hungary,    Belgium,    Denmark,    France,    Germany,    Great 
Britain,  Italy,  Luxemburg,  Portugal,  Spain,  Sweden,  Switzerland,  and 
the  Netherlands, 


274       PRINCIPLES  OF  LABOR  LEGISLATION 

women  industrial  workers  over  eighteen  be  allowed  at  least 
eleven  consecutive  hours  of  rest  at  night,  seven  of  which  must 
fall  between  10  P.M.  and  5  A.M.  In  practically  all  of  the  signa- 
tory countries  the  necessary  legislation  was  enacted  and  the 
prohibition  was  in  force  by  January  i,  1912.  A  number  of 
other  states  and  dependencies  have  passed  similar  legislation. 
Even  in  India  the  night  work  of  women  in  factories  is  for- 
bidden between  7  P.M.  and  5.30  A.M.;  Argentina  forbids  it 
between  9  P.M.  and  6  A.M.  Several  of  the  signatory  states 
have  enacted  legislation  far  beyond  the  provisions  of  the 
treaty.  France,  Belgium,  and  Spain,  for  instance,  have  for- 
bidden many  kinds  of  industrial  work  between  9  P.M.  and 
5  A.M.,  and  in  Holland  the  prohibited  hours  are  between  7  P.M. 
and  6  A.M.  Most  of  these  European  countries  permit  excep- 
tions under  certain  conditions,  especially  when  a  delay  in 
handling  perishable  materials  would  cause  great  financial 
loss,  but  such  exceptions  are  as  a  rule  very  carefully  safe- 
guarded. The  International  Labor  Conference  which  met  in 
Washington  in  November,  1919,  reaffirmed  in  strengthened 
form  the  convention  forbidding  women's  night  work.  Where 
the  war  emergency  had  caused  the  temporary  removal  of  the 
usual  legal  restrictions  on  such  work,  its  evil  effects  had  once 
more  been  demonstrated.1 

While  the  prohibition  of  night  work  by  women  is  by  no 
means  universal  in  America,  by  1920  about  a  dozen  states 
forbade  some  form  of  it,2  and  there  are  signs  that  its 
dangers  are  coming  to  be  better  realized  by  the  public.  The 
standards  for  women's  employment  issued  by  the  Women  in 
Industry  Service  of  the  federal  Department  of  Labor,  which 
were  based  on  war-time  necessities,  though  issued  in  Decem- 
ber, 1918,  included  prohibition  of  the  work  of  women  between 
10  P.M.  and  6  A.M.  Massachusetts  was  the  pioneer,  forbidding 
in  1890  the  employment  of  women  in  manufacturing  and 
mechanical  establishments  between  10  P.M.  and  6  A.M.3  In 
1907  the  law  was  extended  to  forbid  work  in  textile  mills 
between  6  P.M.  and  6  A.M.4 — the  strictest  regulation  found  in 

1  See  Great  Britain,  Ministry  of  Munitions,  Health  of  Munition  Workers 
Committee,  Memorandum  No.  4,  "Employment  of  Women,"  1916. 

2  Connecticut,  Delaware,  Indiana,  Kansas,  Massachusetts,  Nebraska, 
New  York,  Oregon,  Pennsylvania,  South  Carolina,  Utah,  Wisconsin. 

3  Massachusetts,  Laws  1890,  C.  183.          4  Ibid.,  Laws  1907,  C.  267. 


HOURS  OF  LABOR  275 

the  United  States.  Not  one  of  these  statutes,  however,  is 
an  inclusive  night  work  prohibition.  The  Indiana  law,  for 
example,  applies  only  to  factories,1  while  the  South  Carolina 
law  applies  only  to  stores.2  New  York,  by  five  separate 
statutes,  covers  factories,  stores,  restaurants,  elevators,  and 
messenger  service,3  while  Nebraska  covers  a  wider  range  of 
employment  by  including  also  laundries,  hotels,  and  offices.4 
There  is  no  statute  law  in  Oregon  forbidding  night  work,  but 
the  industrial  welfare  commission,  by  administrative  order, 
has  forbidden  it  in  stores,  factories,  and  laundries.5  The 
Kansas  commission  has  taken  similar  action  for  stores  and 
factories.6 

In  some  cases,  however,  the  laws  have  been  so  worded  as 
to  prove  unenforceable.  A  Connecticut  law  of  1913  simply 
forbade  the  employment  of  women  in  certain  lines  of  work 
"after  ten  o'clock  in  the  evening."  7  Therefore  certain  manu- 
facturers observed  the  letter  of  the  law  by  requiring  women  to 
stop  work  at  10  P.M.,  but  calling  them  to  their  tasks  again 
from  midnight  till  early  morning.  It  is  reported  that  this 
practice  became  general  in  munition  plants  during  the  boom 
which  began  in  1915.  It  was  not  until  1919  that  Connecticut 
passed  an  effective  law  specifying  the  entire  period  during 
which  night  work  was  forbidden.8 

Another  small  group  of  states  recognize  the  strain  of  em- 
ployment at  night  for  women  and  seek  to  discourage  it  by 
shortening  the  period  which  may  be  so  worked.  The  Mary- 
land statute  is  typical  of  this  class  of  legislation.  While  by 
day  women  may  work  up  to  ten  hours,  if  any  part  of  their 
work  falls  between  10  P.M.  and  6  A.M.  the  hours  of  employ- 
ment are  limited  to  eight.9  With  these  exceptions,  which 
are  confined  to  a  few  states  and  a  few  industries,  the  night 
work  of  women  is  entirely  unregulated  in  America. 

1  Indiana,  Annotated  Statutes  1908,  Sec.  8021. 

2  South  Carolina,  Code  1912,  Sec.  430. 

3  New  York,  Laws  1913,  C.  83;  Laws  1914,  C.  331;  Laws  1917,  C.  535; 
Laws  1918,  C.  434;  Laws  1919,  C.  544. 

4  Nebraska,  Statutes  1907,  Sec.  6940  (as  amended  by  Laws  1913,  C.  151). 
6  Industrial  Welfare  Commission  of  Oregon,  Orders  Nos.  3  and  5. 

6  Industrial  Welfare  Commission  of  Kansas,  Orders  of  March  14  and 
October  30,  1918. 

7  Connecticut,  Laws  1913,  C.  179.       8  Connecticut,  Laws  1919,  C.  195. 
9  Mary  land,  Public  General  Laws  1911,  Sec.  14. 


276       PRINCIPLES  OF  LABOR  LEGISLATION 

Perhaps  the  slow  progress  of  American  laws  forbidding  night 
work  of  women  may  be  in  part  accounted  for  by  the  doubtful 
attitude  of  certain  of  the  courts.  In  1907,  eight  months 
after  the  international  agreement  to  forbid  night  work,  the 
New  York  State  Court  of  Appeals  declared  such  a  prohibition 
unconstitutional.1  The  doctrine  of  entire  freedom  of  con- 
tract between  employer  and  employee  applying  alike  to  men 
and  to  women  was  emphasized  and  the  court  was  unable  to 
trace  any  connection  between  the  law  and  the  promotion  of 
health.  No  account  was  taken  of  inherent  sex  differences 
between  men  and  women.  Since  this  decision  legislatures  have 
naturally  been  reluctant  to  pass  night-work  laws.  However, 
as  the  dangers  of  night  work  for  women  become  more  widely 
known,  judicial  opinion  seems  to  be  changing  in  respect  to 
the  constitutionality  of  prohibiting  it.  A  brief  by  Mr.  Bran- 
deis  and  Miss  Goldmark,  bringing  out  the  facts,  was  pre- 
sented in  defense  of  the  new  night -work  law  passed  by  New 
York  in  1913.  The  highest  state  court,  the  court  of  appeals, 
unanimously  reversed  its  former  decision,  and,  taking  cog- 
nizance of  the  facts  presented  to  it  in  regard  to  modern  in- 
dustrial conditions,  upheld  the  law  as  a  necessary  protection 
to  the  health  of  women,  both  for  their  own  sakes  and  for  the 
sake  of  posterity.2  At  the  end  of  1919  the  issue  had  not  yet 
been  passed  on  by  the  United  States  Supreme  Court. 

The  injurious  effects  of  night  work  are  even  more  pronounced 
on  children,  whose  strength  and  powers  of  resistance  are  not 
fully  developed,  than  they  are  on  women  workers.  The  first 
of  the  annual  International  Labor  Conferences,  in  1919, 
recommended  to  its  members  the  enactment  of  laws  forbid- 
ding the  employment  of  children  under  eighteen  at  night,  with 
a  limited  number  of  exceptions  for  those  between  sixteen  and 
eighteen.  In  the  United  States  children  are,  fortunately, 
better  protected  with  regard  to  night  work  than  women,  there 
being  no  constitutional  difficulty  in  their  case.  The  standard 
proposed  by  the  International  Labor  Conference  has  hardly 
been  reached,  however.  About  forty  states  have  prohibited 
the  night  work  of  children  under  sixteen,  generally  between 

People  v.  Williams,  189  N.  Y.  131,  81  N.  E.  778  (1907). 
8  People  v,  Charles  Schweinler  Press,  214  N.  Y.  395,  108  N.  E.  639  (1915). 
See  also  Chapter  IX,  "Administration." 


HOURS  OF  LABOR  277 

7  P.M.  and  6  A.M.,  and  in  addition,  in  Washington,  where  there 
were  no  statutory  restrictions  except  in  bake-houses,  the  in- 
dustrial welfare  commission  by  administrative  orders  forbade 
the  night  work  of  minors  under  eighteen  in  laundries  and 
telephone  and  telegraph  offices.  The  greatest  abuses  in  con- 
nection with  the  night  work  of  children  have  been  found  in 
textile  mills  and  glass  works,  and  on  account  of  the  strong 
opposition  of  the  manufacturers  the  states  where  conditions 
were  worst  have  frequently  been  the  last  to  pass  the  necessary 
legislation.  However,  by  1920  all  the  northern  textile  states 
and  important  glass-manufacturing  states  forbade  the  work 
of  children  at  night. 

(j)  Saturday  and  Legal  Holidays 

While  more  than  a  dozen  states  have  made  Saturday  after- 
noon a  legal  holiday,  few,  if  any,  have  made  effective  pro- 
vision for  the  enforcement  of  this  or  other  laws  fixing  legal 
holidays.  The  extension  of  the  Saturday  half-holiday  in 
private  employment  during  recent  years  is  often  due  to  vol- 
untary action  by  employers.  The  short  workday  on  Satur- 
day is  more  often  found  in  summer  than  in  winter,  and  more 
often  among  clerical  and  mercantile  *  than  among  industrial 
workers.  Occasionally  strong  labor  organizations,  such  as 
those  in  some  of  the  building  and  garment  trades,  have  secured 
the  forty-four-hour  week,  which  means  the  Saturday  half- 
holiday.  The  United  States  Bureau  of  Labor  Statistics  has 
reports  of  132,934  workers  who  gained  the  forty-four-hour 
week  between  1915  and  the  end  of  1918,  the  great  majority 
of  whom  obtained  it  in  the  latter  year. 

But  probably  women's  hour  laws  have  been  one  of  the 
strongest  single  influences  in  securing,  though  indirectly,  a 
shorter  workday  on  Saturday  to  certain  workers.  During  the 
past  decade  many  efforts  to  improve  standards  took  the  form 
of  cutting  down  the  sixty-hour  week,  though  still  retaining 
the  ten-hour  day;  this  in  actual  operation  often  meant  a 

1  The  Consumers'  League  has  been  especially  active  in  securing  the 
Saturday  half -holiday  for  salesgirls.  In  1914  it  for  the  first  time  induced 
most  of  the  large  New  York  stores  to  close  all  day  Saturday  during  July 
and  August. 


278       PRINCIPLES  OF  LABOR  LEGISLATION 

Saturday  half -holiday.  Ten  states  are  still  found  which  allow 
ten  or  ten  and  a  half  hours  of  work  daily,  but  set  a  weekly 
limit  of  fifty-four  to  fifty-eight  hours,1  while  Massachusetts, 
North  Dakota,  and  Ohio  have  adopted  the  same  principle 
with  the  higher  standards  of  an  eight-and-a-half  or  nine-hour 
day  and  a  week  of  forty-eight  or  fifty  hours.  Several  laws 
also  permit  an  increase  in  daily  hours  to  secure  a  shorter  work- 
day one  day  in  the  week. 

In  public  employment,  as  in  private,  the  Saturday  half- 
holiday  has  become  the  established  practice  for  clerical  em- 
ployees. In  addition,  a  few  laws  are  found  extending  it  to 
laborers  as  well.  For  instance,  Massachusetts  in  1914  by 
popular  vote  provided  a  Saturday  half -holiday  without  loss  of 
pay  for  all  laborers,  workmen,  and  mechanics  employed  per- 
manently by  the  state  or  by  any  of  its  boards  or  commissions. 

In  continental  Europe  the  working  week  of  five  and  a  half 
days  is  generally  known  as  "the  English  week"  because  it 
is  more  widely  enforced  by  law  in  England  than  in  any  other 
country.  Thus  in  Great  Britain  laws  are  found  forbidding 
the  employment  of  women  and  young  persons  on  Saturday 
after  i  P.M.  in  textile  mills,  and  for  more  than  eight  hours  in 
non-textile  factories  and  workshops.  So  important  is  the 
Saturday  half-holiday  considered  in  Europe  that  it  was  pro- 
posed as  a  subject  for  international  treaty  at  the  latest  meet- 
ing of  the  International  Association  for  Labor  Legislation  in 
1912. 

(4)  One  Day  of  Rest  in  Seven 

It  has  been  pointed  out z  that  under  modern  industrial 
conditions  many  thousands  of  wage-earners  are  obliged  to 
work  seven  days  a  week,  a  practice  which  deprives  them  of 
proper  leisure  and  tends  to  break  down  their  health.  Remedial 
legislation  in  the  United  States  has  been  of  two  kinds.  The 
type  of  law  found  in  nearly  all  the  states  is  a  descendant  of 
the  old  Puritan  "blue  laws"  and  attempts  to  forbid  all  Sun- 


1  Connecticut,    Delaware,    Michigan,    Minnesota    (mercantile),    New 
fampshire,  Pennsylvania,  Rhode  Island,  Vermont,  Wisconsin,  Wyoming. 


See  "Women's  Hours,"  p.  237. 
2  See  p.  222. 


HOURS  OF  LABOR  279 

day  work,  primarily  from  religious  motives.  Such  laws,  how- 
ever, drafted  before  the  rise  of  modern  industry,  generally 
fail  to  protect  either  the  worker  or  the  Sabbath.  Many  of 
them  are  meaningless  because  filled  with  exceptions;  others 
remain  dead  letters  on  the  statute  books;  all  fail  to  provide 
proper  means  of  enforcement.  A  few  enforceable  laws  have 
been  passed  prohibiting  Sunday  employment  in  a  single  occu- 
pation, generally  that  of  bakers  or  barbers,  but  have  generally 
failed  in  their  purpose  because  the  courts  have  tended  to  de- 
clare them  unconstitutional  as  making  an  arbitrary  classifica- 
tion of  industries,  which  violates  the  equal  protection  clause 
of  the  fourteenth  amendment  to  the  federal  constitution.1 
But  it  is  hardly  practicable  or  desirable,  at  the  present  day, 
to  realize  the  aim  of  the  old-time  Sunday  law  and  stop  all  Sun- 
day work.  Public  necessity  demands  the  continuous  operation 
of  such  services  as  telephone  and  telegraph  lines,  heat,  light, 
and  power  plants,  steam  and  electric  railways,  and  hotels  and 
restaurants.  Another  large  group  of  industries,  important 
among  which  are  iron  and  steel  works,  cement  factories,  paper 
and  pulp,  flour  and  grist  mills,  usually  operate  continuously 
on  account  of  technical  requirements  or  sometimes  simply  for 
economy.  To  remedy  this  situation  an  entirely  new  form  of 
law  has  been  devised  which  recognizes  that  much  seven-day 
work  is  a  necessity  and  that  the  objectionable  feature  is  the 
seven-day  worker.  This  type  of  law,  therefore,  simply  re- 
quires that  all  employees  be  given  a  weekly  day  of  rest,  those 
employed  on  Sunday  being  given  a  free  day  at  some  other 
time  in  the  week.  Since  such  a  law  generally  necessitates  an 
addition  of  one-sixth  to  the  working  force,  it  tends  to  elimi- 
nate all  unnecessary  seven-day  labor  at  the  same  time  that 
it  secures  to  every  workman  a  weekly  rest  day. 

This  modern  legislative  movement  began  in  Switzerland, 
where  a  law  was  passed  in  1890  requiring  each  railway  em- 
ployee to  be  given,  without  loss  of  pay,  fifty-two  weekly  rest 
days  each  year,  seventeen  of  them  to  fall  on  Sunday.  Be- 
ginning at  about  1905  enforceable  rest-day  measures  were 


1  See  Lindley  M.  Clark,  "Labor  Laws  Declared  Unconstitutional," 
United  States  Bureau  of  Labor,  Bulletin  No.  91,  November,  1910,  pp. 
951-952. 


280       PRINCIPLES  OF  LABOR  LEGISLATION 

enacted  in  almost  all  the  leading  European  countries.1  These 
laws  generally  name  Sunday  as  the  day  of  rest,  but  permit 
the  operation  of  continuous  industries  on  that  day  provided 
every  employee  gets  some  other  day  in  the  week  free.  As 
with  many  other  classes  of  European  labor  legislation,  only 
the  general  principle  is  laid  down  in  the  laws  and  special 
extensions  or  exceptions  are  largely  determined  by  adminis- 
trative rulings.2 

In  America  six  states  and  the  federal  government  had  by 
January,  1920,  passed  laws  embodying  this  principle  of  one 
day  of  rest  in  seven.  The  federal  law  applies  only  to  post- 
office  employees.3  The  California  and  Connecticut  statutes 
are  nullified  by  exempting  "any  case  of  emergency,"  4  and  in 
addition  the  Connecticut  law  specifically  excepts  a  long  list 
of  occupations.  The  Michigan  act  applies  only  to  interurban 
motormen  and  conductors,  but  is  interesting  as  the  first 
attempt  to  apply  legislation  of  this  type  to  transportation.5 
There  remain  the  Massachusetts  and  New  York  acts  of  1913  6 
and  the  Wisconsin  act  of  1919, 7  which  are  similar  in  character 
and  represent  the  most  effective  rest-day  legislation  yet  passed 
in  the  United  States.  These  laws  apply  to  factories  and  mer- 
cantile establishments  generally,  but  exclude  certain  occupa- 
tions, such  as  janitors,  watchmen,  superintendents,  foremen  in 
charge,  employees  caring  for  live  animals,  maintaining  fires 
or  making  repairs  to  boilers  or  machinery,  and  employees 
working  not  more  than  three  hours  on  a  seventh  day  in  setting 
sponges  in  bakeries.  In  addition  Massachusetts  excludes  a 
long  list  of  such  occupations  as  those  connected  with  news- 
paper work,  restaurants,  drug  stores,  livery  stables  or  garages, 
the  sale  or  distribution  of  gas,  electricity,  or  milk,  or  any 


1  The  list  of  foreign  countries  with  such  laws  includes  Austria,  Bos- 


Labor,  Bulletin  No.  49,  December,  1911,  "Rest-Day  Legislation  Abroad," 
John  A.  Fitch.  See  also  Bulletins  of  the  International  Labor  Office.) 

2  These  orders  and  decrees  may  be  found  in  detail  in  the  Bulletins  of 
the  International  Labor  Office. 

'United  States,  Laws  1911-1912,  C.  389,  Sec.  5. 

4  California,  Code  1906,  p.  722;   Connecticut,  Laws  1911,  C.  162. 

'Michigan,  Laws  1919,  No.  361. 

6  Massachusetts,  Laws  1913,  C.  619;  New  York,  Laws  1913,  C.  740. 

'Wisconsin,  Laws  1919,  C.  653. 


HOURS  OF  LABOR  281 

emergency  which  could  not  reasonably  have  been  expected. 
Wisconsin  excludes  all  workers  in  milk  and  cheese  plants  and 
in  flour  mills.  New  York  furthermore  provides  that  if  there 
are  practical  difficulties  or  unnecessary  hardships  in  carrying 
out  the  law,  the  industrial  commission  may  make  variations 
"if  the  spirit  of  the  act  be  observed  and  substantial  justice 
done,"  and  if  the  variations  apply  to  all  cases  in  which  condi- 
tions are  substantially  the  same.1  An  earlier  amendment 
giving  the  commissioner  of  labor  power  to  exempt  necessarily 
continuous  processes  in  which  no  one  was  employed  for  more 
than  eight  hours  a  day  was  declared  unconstitutional  by  the 
court  of  appeals  on  the  ground  that  it  constituted  a  delegation 
of  legislative  power.2  Under  the  clause  just  mentioned, 
however,  which  authorizes  the  industrial  commission  to  grant 
variations  from  the  law  in  case  of  practical  difficulty  or  un- 
necessary hardship,  provided  substantial  justice  be  done, 
the  commission  has  from  time  to  time,  upon  affirmative  vote 
of  the  workers  concerned,  given  exemption  to  necessarily  con- 
tinuous industries  or  processes  where  the  eight-hour  shift  was 
in  practice.  As  an  aid  to  enforcement  employers  are  usually 
required  to  post  a  schedule  containing  a  list  of  employees  who 
are  to  work  on  Sunday  and  designating  the  day  of  rest  given  them. 

Investigations  carried  on  by  the  American  Association  for 
Labor  Legislation  3  in  Massachusetts  and  New  York  after 
the  law  had  been  in  force  a  year  showed  that  its  provisions 
were  being  generally  observed  and  that  many  employees  who 
had  previously  been  obliged  to  work  seven  days  a  week  were 
obtaining  a  weekly  rest  day  without  undue  hardship  to  in- 
dustry. 

Women  and  children  are  also  sometimes  protected  from 
seven-day  labor  through  the  provisions  of  those  maximum 
hour  laws  which  limit  work  to  six  days  a t week;  other  stat- 
utes seek  to  insure  a  weekly  rest  day  by  fixing  weekly  hours 
at  six  times  daily  hours  or  less.  A  few  women's  hour  laws, 
however,  leave  the  way  open  for  seven-day  labor  by  setting 
a  daily  but  not  a  weekly  limit,  and  one  state,  Arizona,4  invites 


1  New  York,  Laws  1915,  C.  648. 

2  People  v.  Klinck  Packing  Co.,  214  N.  Y.  121,  108  N.  E.  278  (1915)- 

3  American  Labor  Legislation  Review,  December,  1914,  pp.  615-626. 

4  Arizona,  Penal  Code  1913,  Sec.  717. 


282       PRINCIPLES  OF  LABOR  LEGISLATION 

it  by  making  the  weekly  working  period  seven  times  the  per- 
mitted daily  hours. 

It  has  been  pointed  out  that  Sunday  laws  applying  to 
single  occupations  have  sometimes  been  set  aside  as  class 
legislation.  General  Sunday  laws,  however,  have  almost 
universally  been  upheld  by  the  higher  courts.  Two  distinct 
lines  of  reasoning  have  been  followed.  In  the  first  half  of 
the  nineteenth  century,  beginning  with  a  New  York  case  in 
iSn,1  the  constitutionality  of  the  laws  was  seldom  directly 
involved,  but  was  assumed  on  religious  grounds  in  connec- 
tion with  the  settlement  of  such  questions  as  the  scope  of 
their  application,  the  validity  of  contracts  made  on  Sunday, 
the  definition  of  "works  of  necessity  or  charity,"  or  the  classi- 
fication of  employments.  In  1844  in  North  Carolina  a  case 
first  came  up  which  was  sustained  on  the  grounds  of  the  police 
power  of  the  state.  For  the  next  twenty  years  both  lines  of 
reasoning  found  their  way  into  court  decisions,  but  since 
1866  the  state  courts  in  sustaining  these  laws  have  relied  al- 
most entirely  upon  the  police  power,  and  all  acts  passed  upon 
by  the  federal  Supreme  Court  have  been  upheld  on  this  same 
ground.2 

Representative  of  the  reasoning  by  which  Sunday  laws 
have  been  held  a  legitimate  exercise  of  the  police  power  is 
the  opinion  of  the  state  supreme  court  in  Hennington  v. 
Georgia,3  later  quoted  by  the  United  States  Supreme  Court: 

"There  can  be  no  well-founded  doubt  of  its  being  a  police 
regulation,  ...  for  the  frequent  and  total  suspension  of  the 
toils,  cares,  and  strain  of  mind  or  muscle  incident  to  pursuing 
an  occupation  or  common  employment  is  beneficial  to  every 
individual,  and  incidentally  to  the  community  at  large,  the 
general  public.  Leisure  is  no  less  essential  than  labor  to 
the  well-being  of  man.  Short  intervals  of  leisure  at  stated 
periods  reduce  wear  and  tear,  promote  health,  favor  cleanli- 
ness, encourage  social  intercourse,  afford  opportunity  for 


1  People  v.  Ruggles,  8  Johnson  (N.  Y.)  289,  5  Am.  Dec.  335  (1811). 

2  As  late  as  1915  a  general  Sunday  law  was  attacked  in  Oregon  as  class 
legislation  and  as  a  violation  of  the  fourteenth  amendment,  but  was  up- 
held by  the  state  supreme  court  (States.  Nicholls,77  Ore.  415,151  Pac.  473). 

3  Hennington  v.  State,  90  Ga.  396,  17  S.  E.  1009  (1892);   Hennington  v. 
Georgia,  163  U.  S.  299,  16  Sup.  Ct.  1086  (1896). 


HOURS  OF  LABOR  283 

introspection  and  retrospection,  and  tend  in  a  high  degree 
to  expand  the  thoughts  and  sympathies  of  people,  enlarge 
their  information,  and  elevate  their  morals. 

"If  a  law  which,  in  essential  respects,  betters  for  all  the 
people  the  conditions,  sanitary,  social,  and  individual,  under 
which  their  daily  life  is  carried  on  and  which  contributes  to 
insure  for  each,  even  against  his  own  will,  his  minimum 
allowance  of  leisure,  cannot  be  rightfully  classed  as  a  police 
regulation,  it  would  be  difficult  to  imagine  any  law  that 
could." 

In  only  one  state  has  a  test  case  on  one-day-rest-in-seven 
laws  reached  a  higher  court.  A  priori  it  would  seem  that 
these  laws  could  be  sustained  as  police  power  regulations  as 
the  Sunday  laws  have  been,  and  in  the  main  such  a  position 
was  taken  by  the  New  York  State  Court  of  Appeals  on  Febru- 
ary 5,  1915.  The  court  said:1  "Can  we  say  that  the  pro- 
vision for  a  full  day  of  rest  in  seven  for  such  employees  is  so 
extravagant  and  unreasonable,  so  disconnected  with  the 
probable  promotion  of  health  and  welfare,  that  its  enact- 
ment is  beyond  the  jurisdiction  of  the  legislature  ?  .  .  .  We  have 
no  power  of  decision  of  the  question  whether  it  is  the  wisest 
and  best  way  to  offset  these  conditions  and  to  give  to  employees 
the  protection  which  they  need,  even  if  we  had  any  doubt  on 
that  subject.  Our  only  inquiry  must  be  whether  the  pro- 
vision on  its  face  seems  reasonable,  fair,  and  appropriate,  and 
whether  it  can  fairly  be  believed  that  its  natural  consequences 
will  be  in  the  direction  of  the  betterment  of  public  health 
and  welfare,  and  therefore  that  it  is  one  which  the  state  for 
its  protection  and  advantage  may  enact  and  enforce."  The 
classifications  made  by  the  act  have  likewise  been  upheld,  as 
meeting  the  actual  conditions  of  modern  industrial  life.  Its 
limitation  to  employees  of  factories  and  mercantile  establish- 
ments was  reasonable  because  "We  know  as  a  matter  of 
common  observation  that  such  labor  is  generally  indoors  and 
imposes  that  greater  burden  on  health  which  comes  from 
confinement  many  times  accompanied  by  crowded  conditions 
and  impure  air."  The  exemption  of  dairies,  creameries,  and 
similar  plants  employing  not  more  than  seven  workers  was 


1  People  v.  Klinck  Packing  Co.,  214  N.  Y.  121,  108  N.  E.  278  (1915). 


284      PRINCIPLES  OP  LABOR  LEGISLATION 

also  reasonable,  because  of  the  perishable  nature  of  the  product, 
the  heavier  burden  of  the  necessary  increase  in  the  force  of  a 
small  establishment,  and  because  of  the  closer  personal  relation 
between  employer  and  employee  and  lessened  strain  in  such 
small  establishments.  The  power  given  to  the  commissioner 
of  labor  to  exempt  continuous  industries  in  which  daily  hours 
were  not  more  than  eight,  was  held  to  be  an  unconstitutional 
delegation  of  legislative  power,  but  similar  action  by  the  in- 
dustrial commission  under  a  later  amendment  authorizing 
variations  in  certain  cases  has  not  been  questioned.  Thus 
the  attitude  of  the  courts  is  apparently  favorable  to  the  ex- 
tension of  laws  securing  industrial  workers  a  weekly  day  of 
rest. 

(5)  Annual  Vacations 

The  average  salaried  worker  would  consider  himself  ill-used 
if  he  failed  to  receive  an  annual  paid  vacation  of  two  weeks 
or  more.  But  ordinarily  no  such  provision  is  made  for  the 
wage-earner.1  In  this  respect  employees  of  state  and  federal 
governments  fare  better  than  workers  in  private  employment. 
About  half  a  dozen  states  have  laws  providing  annual  vaca- 
tions for  several  classes  of  employees.  Representative  of 
these  is  the  California  statute,  which  allows  an  annual  vaca- 
tion of  fifteen  days  with  pay  to  all  regular  employees  of  state 
hospitals,  state  commissions  and  boards,  and  the  state  print- 
ing-office.2 The  federal  government  likewise  provides  annual 
paid  leaves  of  absence  for  several  classes  of  employees,  in- 
cluding the  employees  of  the  Bureau  of  Engraving  and  Print- 
ing, and  the  Government  Printing  Office,  workers  in  navy- 
yards,  gun  factories  and  arsenals,  and  railway  postal  clerks. 
In  Massachusetts  in  1914  an  act  providing  a  fortnight's  paid 
vacation  for  laborers  employed  by  cities  and  towns  was  sub- 
mitted to  popular  vote  and  accepted  by  over  half  of  the  cities 
and  towns  of  the  commonwealth.  Another  method  some- 
times used  to  secure  vacations  to  city  employees  is  that  of 


1  In  May,  1915,  the  Milk  Wagon  Drivers'  Union  of  Chicago  signed  an 
agreement  with  their  employers  which  included  a  provision  for  two 
weeks'  annual  vacation  with  pay.     This  is  said  to  be  the  first  such  pro- 
vision in  a  signed  trade  agreement. 

2  California,  Laws  1909,  C.  250,  Sec.  i. 


HOURS  OF  LABOR  285 

inserting  such  provisions  in  city  charters.  For  example,  the 
New  York  City  charter  gives  executive  heads  at  their  dis- 
cretion power  to  grant  employees  annual  vacations  of  not 
less  than  one  week,  but  per  diem  employees  may  not  be  given 
more  than  two  weeks. 

Laws  requiring  annual  vacations  have  in  this  country  cov- 
ered only  public  employment,  but  in  Europe  they  have  some- 
times been  extended  to  private  industry  as  well.  Thus  in  the 
canton  of  Berne,  Switzerland,  every  woman  who  has  been 
employed  on  time  rates  in  the  same  business  for  more  than 
one  year  must  be  given  six  consecutive  holidays  with  pay; 
after  the  second  year's  work  eight  holidays;  after  the  third 
year  ten  days;  and  after  the  fourth  year  twelve  days.  An- 
other method  of  providing  vacations  sometimes  used  abroad 
is  the  insertion  of  labor  clauses  in  public-service  franchises. 
For  instance,  the  subway  franchise  in  Paris  requires  that  all 
employees  be  given  ten  days'  vacation  annually  with  pay. 

The  foregoing  discussion  indicates  that  legal  regulation  of 
the  working  hours  and  of  the  rest  periods  for  the  different 
classes  of  employees  in  America  has  tended  toward  uniform 
provisions,  the  same  limitations  usually  being  applied  to  all 
industries  covered  by  the  law.  In  European  countries,  on 
the  other  hand,  in  addition  to  broad  maximum  and  minimum 
regulations,  frequent  use  is  made  of  the  method  of  determin- 
ing the  length  of  the  work  and  rest  periods  in  accordance  with 
the  special  hazards  of  each  industry  or  occupation.  Scientific 
adjustment  of  hours  of  labor  requires  thorough  and  often  con- 
tinued investigations  of  actual  conditions,  and  should  com- 
bine the  practical  knowledge  of  workers  and  employers  with 
the  technical  knowledge  of  experts.  In  many  occupations 
dusts  and  gases,  poisons,  or  extreme  temperatures,  make  it 
safe  to  work  consecutively  for  only  short  periods.1  The  pres- 
ence in  America  of  hazardous  industries  fraught  with  danger 
to  the  life  and  health  of  thousands  of  workers  employed  for 
long  hours  and  frequently  seven  days  a  week,  but  as  yet  un- 
regulated either  by  trade  organizations  or  by  state  control, 

1  The  strike  in  the  oil  plants  of  Bayonne,  N.  J.,  for  instance,  during 
the  summer  of  1915,  brought  to  public  knowledge  the  work  of  the  still- 
cleaners  who  must  toil  in  a  temperature  of  200°  F.  cleaning  the  huge  vats 
in  which  oil  is  refined. 


286       PRINCIPLES  OP  LABOR  LEGISLATION 

indicates  the  need  for  a  system  whereby  permanent  bodies  will 
be  authorized  to  investigate  scientifically  such  conditions  of 
employment  and  fix  varying  hours  of  labor  on  a  basis  which 
will  adequately  protect  the  health  and  welfare  of  the  em- 
ployees and  the  state.  As  already  noted,  some  of  the  leading 
states  of  the  country  have  created  industrial  boards  or  com- 
missions with  authority  to  make  special  investigations  and  to 
regulate  hours  in  the  various  industries.  Moreover,  this 
method  of  meeting  the  problem  has  been  held  constitutional 
by  the  supreme  court  of  Wisconsin  on  the  ground  that  "The 
authority  thus  conferred  invests  the  commission  with  no 
arbitrary  and  uncontrolled  discretion,  but  directs  them  to 
ascertain  the  facts  and  to  apply  the  rules  of  law  thereto  under 
the  prescribed  terms  and  conditions.  Such  action  is  not 
legislative  in  character,  but  is  the  performance  of  an  executive 
and  ministerial  duty  within  the  regulations  provided  for  in 
the  act."  l  In  these  two  facts  lies  some  indication  of  the 
direction  which  future  progress  may  be  expected  to  take.2 

1  State  v.  Lange  Canning  Co.,  164  Wis.  228,  160  N.  W.  57  (1916), 
quoting  State  ex  rel.  Buell  v.  Frear,  146  Wis.  305,  131  N.  W.  832  (1911). 

2  See  Chapter  IX,  "Administration." 


CHAPTER  VI 
UNEMPLOYMENT 

The  Secretary  of  Labor  estimated  in  January,  1919,  that 
1,000,000  American  wage-earners  were  unemployed.  Four 
years  before,  in  March  and  April,  1915,  a  careful  canvass 
of  about  400,000  families  in  fifteen  American  cities  showed 
11.5  per  cent,  of  the  wage-earners  unemployed  and  an  addi- 
tional 1 6. 6  per  cent,  working  only  part  time.  On  the  basis  of 
a  similar  investigation  in  New  York  City  earlier  in  the  year 
it  was  calculated  that  the  total  army  of  unemployed  wage- 
earners  in  that  city  alone  at  the  time  numbered  about  442,000.* 
The  United  States  Census  for  1900  showed  that  6,468,964 
working  people,  or  nearly  25  per  cent,  of  all  engaged  in  gainful 
occupations,  had  been  unemployed  some  time  during  the  year. 
Of  these,  3,177,753  lost  from  one  to  three  months'  work  each; 
736,286  lost  from  seven  to  twelve  months  each.2  A  student 
of  the  problem  finds  that  from  1,000,000  to  6,000,000  workers, 
exclusive  of  farm  laborers,  were  idle  in  the  United  States  at 
all  times  between  1902  and  i9i7.3 

The  employee's  loss  from  this  irregularity  of  work  is  two- 
fold. Besides  his  enormous  immediate  loss  in  wages  and 
the  resulting  distress,  there  is  the  equally  serious  loss  in  the 
weakening  of  moral  fiber  which  comes  with  uncertainty,  habits 
of  irregular  work,  and  occasional  lapses  into  destitution.  Un- 
employment is  a  culture  bed  for  pauperism  and  all  its  accom- 
panying evils.  As  Lescohier  has  well  stated,  irregular  em- 
ployment "undermines  the  physique;  deadens  the  mind; 
weakens  the  ambition;  destroys  the  capacity  for  continuous, 
sustained  endeavor;  induces  a  liking  for  idleness  and  self- 
indulgence;  saps  self-respect  and  the  sense  of  responsibility; 

1  United  States  Bureau  of  Labor  Statistics,  Bulletin  No.  172,  1915,  p.  7. 

2  Similar  data  were  collected  by  the  government  in  1910,  but  are  still 
unpublished. 

3  Hornell  Hart,  Fluctuations  in  Unemployment  in  Cities  of  the  United 
States,  IQO2  to  1917,  Helen  S.  Trounstine  Foundation  Studies,  Vol.  J, 
No.  2,  1918,  pp.  5I-52- 


288       PRINCIPLES  OF  LABOR  LEGISLATION 

impairs  technical  skill;  weakens  nerve  and  will  power;  creates 
a  tendency  to  blame  others  for  failures;  saps  courage;  pre- 
vents thrift  and  hope  of  family  advancement;  destroys  a 
workman's  feeling  that  he  is  taking  good  care  of  his  family; 
sends  him  to  work  worried  and  underfed;  plunges  him  in  debt."  l 

Moreover,  in  addition  to  the  losses  by  employees  is  the 
direct  financial  loss  to  employers  through  the  expense  of 
"hiring  and  firing."  A  number  of  employment  managers 
estimated  the  cost  of  hiring  and  "breaking  in "  a  new  employee 
at  from  $50  to  $200;  in  only  one  case  was  the  estimate  as 
low  as  $30.  A  machine-tool  builder  to  whom  the  matter 
had  been  suggested  declared  after  a  careful  study  of  his  plant 
that  the  hiring  of  1,000  new  persons  in  one  year,  while  the 
permanent  additions  to  his  force  were  fewer  than  fifty,  had 
reduced  his  profits  by  at  least  $150,000,  or  about  $150  for  each 
new  worker  hired.2  When  among  a  group  of  105  plants  with 
226,038  employees,  225,942  new  employees  are  hired  in  the 
course  of  a  year,  30  to  40  per  cent,  of  the  establishments  hiring 
from  two  to  six  times  their  average  labor  force,  the  magnitude 
of  the  resulting  waste  becomes  apparent. 

Even  this  general  statement  of  the  wastes  of  unemploy- 
ment indicates  the  imperative  need  of  preventive  measures. 
Hence  we  are  asking  with  increasing  insistence,  is  unemploy- 
ment a  necessary  evil?  If  not,  to  what  extent  is  legislation 
a  solution? 

In  Chapter  I  it  was  suggested  that  unemployment  may  be 
defined  as  the  failure  to  make  a  labor  contract.  This  failure 
may  be  traced  to  one  of  three  causes:  (i)  cessation  of  work 
arising  from  trade  disputes;  (2)  unemployability,  or  disability, 
owing  to  sickness,  old  age,  or  other  personal  conditions;  and 
(3)  inability  of  men  who  are  willing  and  able  to  work  to  find 
employment. 

The  present  discussion  relates  only  to  the  third  part  of 
the  whole  problem  of  idleness.  Legislation  intended  to  mini- 
mize idleness  due  to  labor  disputes  is  discussed  in  Chapter 
III.  The  problems  of  unemployability  and  unemployment 
are  by  no  means  identical,  but  are  related  to  the  extent  that 

1  Don  D.  Lescohier,  The  Labor  Market,  1919,  p.  107. 

2  Magnus  W.  Alexander,  "Hiring  and  Firing:    The  Economic  Waste 
and  How  to  Avoid  It,"  American  Industries,  August,  1915,  p.  19. 


UNEMPLOYMENT  289 

much  chronic  unwillingness  to  work  has  resulted  from  the 
demoralizing  influence  of  unemployment,  and  therefore  a 
reduction  of  unemployment  may  decrease  the  additions  to 
the  ranks  of  the  unemployable.  How  to  provide  satisfactory 
means  of  caring  for  the  shiftless  and  the  criminal  is  primarily 
a  problem  of  charity  and  correction,  but  the  prevention  of 
unemployment  is  a  problem  of  industrial  organization.  In 
this  chapter  the  purpose  is  to  describe  the  more  direct  legis- 
lative remedies  for  unemployment  due  to  the  inability  of 
normal  workers  to  obtain  positions.  These  remedies  may 
deal  either  with  (i)  the  regulation  of  private  employment 
offices,  (2)  the  establishment  and  operation  of  public  employ- 
ment offices,  (3)  systematic  distribution  of  public  work,  or 
(4)  the  regularization  of  industry.  A  fifth  important  legisla- 
tive remedy,  unemployment  insurance,  will  be  discussed  in 
the  chapter  on  "Social  Insurance." 

A  study  of  the  comparative  possibilities  of  the  various  pro- 
posed or  attempted  remedies  for  unemployment  would  be 
much  facilitated  by  statistics  indicating  the  total  amount  of 
involuntary  idleness  and  what  proportion  is  due  to  each  one 
of  the  several  factors,  such  as  cyclical  and  seasonal  fluctuations, 
unnecessarily  frequent  changes  in  the  personnel  of  the  work- 
ing force  and  other  preventable  irregularity  in  employment, 
and,  lastly,  to  the  lack  of  a  centralized  market  for  labor.  But 
accurate  and  comprehensive  figures  of  this  nature  are  not 
available  in  the  United  States.  The  existence  of  unemploy- 
ment to  a  significant  degree  is  undoubted,  but  unfortunately 
it  is  impossible  at  the  present  time  to  make  more  than  a  rough 
guess  as  to  the  relative  proportion  of  unemployment  due  to 
each  of  the  several  causes  mentioned. 

In  New  York  and  Massachusetts,  however,  the  state  labor 
departments  have  for  certain  periods  collected  fairly  reliable 
statistics  in  regard  to  unemployment  among  organized  workers. 
The  mean  percentage  of  idleness  in  New  York  among  the 
members  of  "representative  unions"  l  at  the  end  of  each 
month  from  1904  to  June,  1915,  due  to  causes  other  than 

1  In  1915  these  representative  trade  unions  numbered  232  and  included 
approximately  25  per  cent,  of  the  total  trade  union  membership  of  the 
state.  The  collection  of  the  figures  was  discontinued  in  1917,  and  they 
have  not  been  published  in  the  above  form  since  June,  1915. 


29o       PRINCIPLES  OF  LABOR  LEGISLATION 

labor  disputes  or  disability,  ranged  from  3.2  to  38.4  per  cent. 
In  all  but  the  year  1906  the  percentage  was  over  12.  In  the 
same  period  the  unemployment  resulting  from  other  causes 
was  comparatively  small,  ranging  from  less  than  1-20  of  i 
per  cent,  to  6.4  per  cent,  for  labor  disputes  and  from  .8  to  1.8 
per  cent,  for  disability.  The  labor  department  states  that, 
aside  from  industrial  maladjustments,  "other  contributing 
causes  for  idleness,  such  as  labor  disputes,  sickness,  and 
accidents,  are  inconsequential."  2  Of  the  11.2  per  cent,  of 
members  of  local  trade  unions  reported  as  unemployed  in 
Massachusetts  on  March  31,  1919,  over  90  per  cent,  were 
unemployed  because  of  "lack  of  work"  rather  than  because 
of  labor  disputes  or  disability.3 

It  should  also  be  noted  that  there  is  a  wide  seasonal  varia- 
tion in  the  demand  for  labor.  Statistics  collected  in  New  York 
as  to  idleness  of  the  members  of  labor  organizations  indicate 
that  the  mean  percentage  of  idleness  during  the  period  1897  to 
1913  was,  in  all  but  three  years,  over  5  per  cent,  at  the  end 
of  September,  and  over  1 5  per  cent. — that  is,  three  times  as  large 
— at  the  end  of  March.  The  federal  Census  of  Manufactures  for 
1905  showed  from  the  manufacturers'  records  that  in  one  month 
7,017,138  wage-earners  were  employed,  while  in  another  month 
there  were  only  4,599,091,  leaving  a  difference  of  2,418,047. 
That  is  to  say,  nearly  two  and  a  half  million  fewer  workers 
were  employed  at  one  period  of  the  year  than  at  another. 

In  addition  to  the  irregularity  of  employment  due  to  cyclical 
fluctuations  in  the  demand  for  labor,  or  industrial  "crises," 
and  that  due  to  seasonal  variations,  a  third  important  type  of 
idleness  results  from  the  casual  or  short-time  nature  of  many 
occupations.  The  New  York  commission  which  studied  un- 
employment reported  in  1911  that  two  out  of  every  five 
wage-earners  are  obliged  to  seek  new  places  one  or  more 
times  every  year.4  In  brief,  the  best  available  evidence  in- 


1  New  York  Department  of  Labor,  Bulletin  No.  73,  1915,  "Idleness  of 
Organized  Wage-Earners  in  the  First  Half  of  1915,    p.  2. 

2  New  York  Industrial  Commission,  Special  Bulletin  No.  85,   1917, 
"Course  of  Employment  in  New  York  State  from  1904  to  1916,"  p.  43. 

3  Massachusetts  Bureau  of  Statistics,  Labor  Division,  Forty-sixth  Quar- 
terly Report  on  Unemployment  in  Massachusetts,  1919,  p.  15. 

4  New  York  Commission  on  Employers'  Liability  and  Other  Matters, 
Third  Report:  Unemployment  and  Lack  of  Farm  Labor,  1911,  p.  38. 


UNEMPLOYMENT  291 

dicates  that  unemployment  is  chronic  and  the  amount  never 
insignificant,  even  when  industrial  conditions  are  at  their 
best. 


i.  REGULATION  OF  PRIVATE  EMPLOYMENT  OFFICES 

To  the  extent  that  there  is  somewhere  a  suitable  "manless 
job"  for  each  "jobless  man,"  the  solution  of  unemployment 
is  simply  the  proper  distribution  of  the  labor  supply.  Per- 
haps the  commonest  method  of  seeking  to  bring  about  this 
distribution  is  by  unsystematic  individual  search.  A  man 
not  recommended  for  a  position  by  a  relative  or  friend  often 
follows  the  easiest  course,  that  which  involves  the  least  im- 
mediate expenditure  of  money  and  thought.  He  starts  from 
home  and  drops  in  at  every  sign  of  "Help  wanted." 

"Help  wanted,"  scrawlecl  on  a  piece  of  cardboard,  is  the 
symbol  of  inefficiency  in  the  organization  of  the  labor  market. 
The  haphazard  practice  of  tramping  the  streets  in  search  of 
work  is  no  method  at  all.  It  assures  success  neither  to  the 
idle  worker  in  his  search  for  work,  nor  to  the  employer  in  his 
search  for  labor.  On  the  contrary,  by  its  very  lack  of  system, 
it  needlessly  swells  the  tide  of  unemployment,  and  through  the 
foot-weary,  discouraging  tramping  which  it  necessitates  often 
leads  to  vagrancy  and  to  crime. 

Another  common  method  of  connecting  employer  and  em- 
ployee is  through  the  medium  of  advertising.  Every  large 
newspaper  in  the  country  carries  yearly  hundreds  of  columns 
of  "Help  wanted"  and  "Situations  wanted,"  at  a  cost  to 
employers  and  employees  estimated  at  about  $5  for  every 
worker.  If  the  money  spent  brought  commensurate  results, 
there  would  be  less  ground  for  complaint.  But  at  present 
an  employer  advertises  for  help  in  several  papers  because  not 
all  the  workers  read  the  same  paper.  The  employee  lists 
the  positions  advertised  and  then  starts  on  the  day's  tramp. 
At  one  gate  fifty  or  a  hundred  men  may  be  waiting  for  a  single 
job,  while  in  other  places  a  hundred  employers  may  be  wait- 
ing each  for  a  single  employee.  Unnecessary  duplication  of 
work  and  expense  by  both  parties  is  evident.  In  addition 
to  the  expense,  newspaper  advertising  also  possesses  inherent 
possibilities  of  fraud.  It  is  difficult  for  the  newspaper,  even 


292       PRINCIPLES  OF  LABOR  LEGISLATION 

if  it  always  tries,  to  detect  misrepresentations,  and  the  vic- 
timized employee  very  rarely  seeks  legal  redress. 

In  recognition  of  the  need  of  more  systematic  means  of 
connecting  the  man  with  the  job,  private  employment  offices 
of  various  sorts  have  long  been  established.  Private  bureaus 
which  charge  no  fees  are  conducted  by  various  philanthropic 
and  semi-philanthropic  agencies  in  all  cities  of  importance, 
but  their  activities  consist  largely  in  finding  casual  employ- 
ment for  near  unemployables.  In  addition,  many  trade 
unions  and  employers'  associations  maintain  employment 
bureaus  for  workers  in  special  occupations.  Some  of  them 
are  very  efficiently  organized  and  conducted.  Notable  ex- 
amples are  the  printers'  union  "day  rooms,"  and  the  chain  of 
employment  bureaus  conducted  by  the  National  Metal 
Trades  Association  in  fourteen  principal  cities  of  the  United 
States.  The  latter  offices  charge  no  fees,  their  registrations 
number  into  the  hundreds  of  thousands,  and  it  is  claimed  by 
the  employers  that  they  are  not  strike-breaking  or  blacklisting 
institutions.1  Nevertheless,  the  usefulness  of  employment 
bureaus  under  the  partisan  control  of  either  trade  unions  or 
employers  is  limited  by  their  potential  or  actual  use  as  weapons 
in  a  trade  dispute.  They  lack  the  neutrality  essential  to  the 
satisfactory  organization  of  the  labor  market. 

(i)  Abuses  of  Private  Agencies 

Private  employment  agents,  doing  business  for  profit,  have 
sprung  up  in  all  large  centers.  In  1912  there  were  249  of 
them  licensed  and  in  operation  in  Chicago;  in  New  York 
they  number  about  600;  and  in  all  the  states,  probably  about 
5,000.  Aside  from  a  few  specialized  agencies,  they  handle 
chiefly  unskilled,  domestic,  and  theatrical  labor.  The  best 
organized  and  most  powerful  are  said  to  be  those  which  sup- 
ply the  railroads  with  common  labor. 

Many  abuses  are  charged  against  the  commercial  agencies, 
particularly  misrepresentation  of  wages  and  conditions  of 
work,  exaction  of  extortionate  fees,  sending  applicants  to 

1  A.  J.  Allen,  secretary  of  the  Associated  Employers  of  Indianapolis, 
in  address  before  the  American  Association  of  Public  Employment 
Offices,  1914. 


UNEMPLOYMENT  293 

immoral  resorts,  and  "splitting  fees"  with  foremen  and  thus 
inducing  frequent  discharges  in  order  to  get  fees  from  men 
employed  to  fill  the  vacancies.  In  the  testimony  in  the  hear- 
ing on  the  petition  for  an  injunction  against  the  Washington 
referendum  practically  abolishing  commercial  agencies,  it  was 
stated  that  some  of  the  private  offices  were  so  conducted  as 
to  "have  three  men  for  one  job;  one  upon  the  job,  one  going 
to  the  job,  and  one  coming  from  the  job,  and  receiving  com- 
pensation from  all."  There  are  frequent  instances,  also, 
where  the  commercial  agencies  accept  fees  and  send  the  work- 
men to  distant  points  where  there  is  no  demand  for  laborers. 
For  example,  in  Kansas,  the  director  of  employment  bureaus 
states  that  during  the  harvest  rush  it  became  known  that 
"private  employment  agents  were  imposing  upon  men  who 
came  to  the  state  in  search  of  work  in  the  harvest  fields,  exact- 
ing a  fee  from  men  seeking  employment  and  then  directing 
them  to  parties  who  had  not  authorized  the  employment  agent 
to  engage  hands."  1  In  the  year  ending  May  i,  1913,  the 
commissioner  of  licenses  of  the  city  of  New  York  reported 
the  investigation  of  1,932  complaints  against  registered  em- 
ployment agents,  resulting  in  nine  convictions,  the  refunding 
of  more  than  $3 ,000  to  victimized  applicants,  and  the  revoca- 
tion of  thirteen  licenses.2  Among  the  charges  for  which  li- 
censes were  revoked  were  fraudulent  conduct,  misrepresenta- 
tion, failure  to  refund  fees,  and  sending  girls  to  questionable 
places. 

(2)  Restrictive  Legislation 

In  the  majority  of  states  the  abuses  of  the  profit-making 
agencies  have  brought  about  restrictive  legislation  designed 
to  prevent  fraud  and  extortion  and  to  insure  moral  surround- 
ings. Under  this  legislation  no  one  may  carry  on  an  employ- 
ment office  for  profit  without  depositing  a  bond  with  the 
state  department  of  labor  or  the  city  authorities  and  securing 
a  license.  The  amount  of  the  bond  varies  from  $  i  oo  to  $5 ,000, 
and  the  annual  license  fee  from  $10  to  $100,  often  both  being 
graded  according  to  the  size  of  the  city  or  the  sort  of  labor 

1  Twenty-ninth  Annual  Report  of  the  Kansas  Department  of  Labor  and 
Industry,  1913,  p.  220. 

2  Report  of  the  Commissioner  of  Licenses ,  New  York  City,  1913,  p.  19. 


394       PRINCIPLES  OF  LABOR  LEGISLATION 

handled.  Licenses  are  issued  only  if  the  premises  are  found 
proper,  and  may,  together  with  the  bond,  be  forfeited  for 
violation  of  the  law.  About  a  dozen  states  prohibit  the 
location  of  agencies  in  saloons.  Association  with  lodging- 
houses  or  restaurants  is  also  frequently  prohibited,  and  Colo- 
rado extends  the  prohibition  to  gambling-places.  In  several 
states  the  sending  of  minors  or  women  to  immoral  resorts  is 
forbidden.  In  many  jurisdictions  the  law  fixes  a  maximum 
charge,  usually  either  a  certain  per  cent,  of  the  first  month's 
wages  or  a  fixed  amount.  Other  related  provisions  are  require- 
ments as  to  form  of  receipt,  and  provisions  for  return  of  all  or 
part  of  the  fee  if  work  is  not  soon  obtained  or  if  a  workman 
is  discharged  in  a  short  time.  In  California  and  the  District 
of  Columbia  traveling  expenses  as  well  as  the  fee  must  be 
returned.  Frequently  it  is  specified  that  all  advertisements 
or  other  information  shall  be  truthful.1  In  a  number  of  states 
a  record  of  all  applicants  registered  is  required,  but  rarely 
are  the  requirements  comprehensive  enough  to  give  informa- 
tion valuable  for  statistical  purposes.  Among  the  notable 
exceptions  is  New  York,  where  to  assist  in  the  publication  of 
a  labor  market  bulletin  by  the  department  of  labor,  private 
employment  agents  must  keep  their  records  "in  such  form 
as  may  be  required  by  the  commissioner  of  labor  in  order 
to  supply  the  same  information  as  that  supplied  by  state 
offices."  The  province  of  Ontario,  Canada,  has  an  excellent 
regulatory  law,  providing  for  annual  licenses.2  The  lieuten- 
ant-governor is  authorized  to  fix  fees  and  make  rules  for  the 
conduct  of  the  business,  and  the  superintendent  who  issues 
the  licenses  is  given  broad  discretionary  power  in  granting 
and  revoking  them.  The  rules  limit  the  fee  which  may  be  taken 
from  an  applicant  or  from  an  employer  for  any  one  employee 
to  $i.  An  agency  may  not  take  any  fee  from  a  would-be 
employee  or  engage  a  person  for  an  employer  unless  it  has  in 
hand  a  written  and  dated  order  from  the  employer  covering 
the  position  in  question.  The  law  has  not  been  in  operation 
long  enough,  however,  to  determine  its  practical  results.  Like 
the  best  of  the  American  laws,  it  fails  to  bring  under  any  con- 

1  Wisconsin  (Laws  1915,  C.  457)  specifies  in  addition  that  advertise- 
ments of  private  bureaus  must  state  the  existence  of  a  strike  or  lockout. 

2  Ontario,  Laws  1917,  C.  37. 


UNEMPLOYMENT  295 

trol  agencies  doing  an  interstate  business.  Some  of  the  worst 
abuses  have  occurred  among  employment  offices  of  this  type. 

The  validity  of  state  regulation  of  private  employment 
agencies  has  seldom  been  denied  by  the  courts.  A  California 
statute  limiting  the  amount  of  charges  was  declared  an  un- 
constitutional infringement  on  the  right  to  contract,1  but 
similar  provisions  in  other  states  have,  as  far  as  is  known, 
been  uniformly  upheld.  The  requirement  of  a  license  has 
been  sustained,  even  when  the  license  fee  was  placed  so  high 
as  to  be  practically  prohibitive.  Thus  a  Georgia  law,  fixing 
a  fee  of  $500  for  each  county  in  which  the  agent  operated* 
was  upheld  by  the  supreme  courts  both  of  the  state  2  and  of 
the  United  States,3  the  latter  decision  being  followed  in  other 
southern  jurisdictions.4  The  prevailing  view  is  that  license 
regulations  have  for  their  object  the  promotion  of  public 
health,  safety,  morals,  and  convenience,  that  they  tend  to 
prevent  fraud  and  extortion,  and  hence  that  they  are  within 
the  police  power  of  the  legislatures  even  though  they  may 
somewhat  restrict  the  right  to  carry  on  a  lawful  business 
without  legislative  interference.5 

The  almost  unanimous  testimony  of  investigators  and  public 
officials,  however,  is  that  these  provisions  have  not  been  suc- 
cessful in  stamping  out  the  abuses  of  private  offices,  and  the 
result  has  been  a  widespread  movement  for  the  abolition  of 
such  offices  altogether.  Complete  suppression  of  private  em- 
ployment bureaus  was  recommended  by  the  Trades  and 
Labour  Congress  of  Canada  at  its  annual  meeting  in  1913,°  and 
a  resolution  of  similar  tenor  was  adopted  at  the  1914  conven- 
tion of  the  American  Association  of  Public  Employment 
Offices.  The  popular  protest  against  the  abuses  of  private 
commercial  agencies  was  voiced  by  the  adoption  in  the  state 
of  Washington  of  an  initiative  measure  prohibiting  the  collec- 
tion of  fees  from  workers  by  an  employment  agent.  The  rea- 

1  Ex  parte  Dickey,  144  Cal.  243,  77  Pac.  924  (1914).     The  statute  in- 
validated was  California,  Laws  1903,  C.  II. 

2  Williams  v.  Fears,  no  Ga.  584,  35  S.  E.  699  (1900). 

8  Williams  v.  Fears,  179  U.  S.  270,  21  Sup.  Ct.  128  (1900). 

4  State  v.  Napier,  63  S.  C.  60,  41  S.  E.  13  (1902);  State  v.  Roberson, 
136  N.  C.  587,  48  S.  E.  595  (1904). 

6  People  ex  ret.  Armstrong  v.  Warden  of  the  City  Prison  of  N.  Y.,  183 
N.  Y.  223,  76  N.  E.  IT  (1905);  Price  v.  People,  193  111.  114,  61  N.  E.  844 
(1901).  6  Dominion  of  Canada  Labour  Gazette,  Vol.  XIV,  p.  448. 


296       PRINCIPLES  OF  LABOR  LEGISLATION 

son  assigned  in  tne  measure  is  that  "The  system  of  collecting 
fees  from  the  workers  for  furnishing  them  with  employment 
.  .  .  results  frequently  in  their  becoming  the  victims  of  imposi- 
tion and  extortion  and  is  therefore  detrimental  to  the  welfare 
of  the  state."  l  This  measure  was  expressly  based  on  the 
police  power,  and  the  United  States  District  Court  upheld  the 
prohibition  inasmuch  as  "The  state,  under  its  police  power, 
can  adopt  any  act  which  reasonably  protects  its  citizens,  or  a 
class  of  citizens,  from  fraud  and  extortion."2  But  in  1917 
the  United  States  Supreme  Court  in  a  five-to-four  decision 
held  the  law  unconstitutional  as  "arbitrary  and  oppressive," 
and  an  undue  restriction  on  the  liberty  of  the  appellants,  and 
therefore  a  violation  of  the  fourteenth  amendment.3  The 
minority  opinion  emphasized  facts  regarding  the  actual 
abuses  of  the  private  agencies  rather  than  abstract  principles 
of  law.  Two  years  later  the  first  official  International  Labor 
Conference  established  under  the  League  of  Nations  recom- 
mended the  abolition  of  all  fee-charging  employment  agencies. 

In  1919  the  Wisconsin  legislature  attempted  to  deal  with  the 
problem  from  a  new  angle,  by  giving  the  state  industrial  com- 
mission discretionary  power  to  refuse  licenses  to  private  em- 
ployment agencies  if  the  public  bureau  in  the  community  is 
sufficient  to  supply  needs.4  The  practical  working  of  this 
experiment,  and  the  attitude  of  the  courts  toward  it  will  be 
watched  with  interest. 

In  a  number  of  other  countries  also,  dissatisfaction  with  the 
private  commercial  agencies  has  led  to  more  or  less  complete 
steps  for  their  repression.  A  German  act  of  1910  states  that 
licenses  must  be  refused  to  private  employment  agencies 
when  there  is  no  absolute  need  for  them,  and  further  declares 
that  the  need  does  not  exist  when  a  public  exchange  is  working 
normally  in  the  locality.5  Licenses  in  Austria  are  conditioned 
on  the  absence  of  a  public  employment  office  in  the  vicinity. 
The  province  of  Quebec  seeks  to  restrict  the  number  of  private 
employment  offices  by  charging  a  fee  of  $200  where  there  is 

1  Initiative  Measure  No.  8,  adopted  November  3,  1914. 

2  Wiseman  v.  Tanner,  221  Fed.  694  (1915). 

1  Adams  v.  Tanner,  244  U.  S.  590,  37  Sup.  Ct.  662  (1917). 
4  Wisconsin,  Laws  1919,  C.  178. 

6  Report  of  the  Union  of  German  Employment  Offices,  International 
Conference  on  Unemployment,  1910,  Report  No.  j,  p.  31. 


UNEMPLOYMENT  297 

a  public  office,  otherwise  only  $25.  A  French  law  of  1904 
authorizes  the  establishment  of  public  offices  by  the  com- 
munes and  at  the  same  time  authorizes  the  closing  of  the 
private  registry  (commercial)  offices  upon  payment  of  dam- 
ages.1 The  actual  achievements  under  this  law  have,  how- 
ever, been  slight. 

2.  PUBLIC  EMPLOYMENT  EXCHANGES 

The  agitation  for  public  employment  offices  has  been  due 
partly  to  the  search  for  a  remedy  for  the  abuses  of  private 
agencies  and  partly  to  a  deepening  conviction  that  it  is  a 
proper  function  of  the  state  to  help  the  unemployed  find  work. 
The  first  American  state  to  make  provision  for  employment 
offices  was  Ohio  in  1890,  followed  by  Montana  in  1895,  and 
New  York  in  i896.2  The  majority  of  the  present  laws  have 
been  enacted  since  1900. 

(i)  State  and  Municipal  Offices 

There  were  in  existence  in  the  country,  prior  to  the  general 
readjustment  forced  by  America's  entrance  into  the  world  war, 
between  eighty  and  ninety  state  and  municipal  employment 
exchanges,  maintained  by  some  twenty-three  states 3  and  by 
more  than  a  dozen  cities.4 

1  Law  of  March  14,  1904,  Art.  II.    See  Bulletin  of  the  International 
Labor  Office,  1904,  French  edition,  p.  48. 

2  The  original  Montana  and  New  York  laws  were  soon  repealed. 

3  By  the  end  of  1916  provision  for  state  employment  exchanges  had 
been  made  in  California,   1915;    Colorado,   1907;    Connecticut,   1905; 
Illinois,  1899;    Indiana,  1909;    Iowa,  1915;    Kansas,  1901;    Kentucky, 
1906;  Maryland,  1902  and  1914;  Massachusetts,  1906;  Michigan,  1905; 
Minnesota,  1905;    Missouri,  1899;    Nebraska,  1897;    New  Jersey,  1915; 
New  York,  1914;    Ohio,  1890;    Oklahoma,  1908;    Pennsylvania,  1915; 
Rhode  Island,  1908;    South  Dakota,  1913;    West  Virginia,  1901;    and 
Wisconsin,  1901. 

4  In  1915  public  employment  exchanges  maintained  by  municipalities 
were  to  be  found  in  Phoenix,  Ariz.;   Los  Angeles,  Sacramento,  and  San 
Francisco,  Calif.;  Kansas  City,  Mo.;  Butte,  Great  Falls,  and  Missoula, 
Mont.;  Newark,  N.  J.;  New  York,  N.  Y.;  Portland,  Ore.;   Pittsburgh, 
Pa.;    Richmond,  Va.;    Aberdeen,  Everett,  Hoquiam,  Seattle,  Spokane, 
and  Tacoma,  Wash. ;   and  perhaps  in  a  few  additional  cities.     The  three 
states  of  Montana,   Louisiana,  and  Idaho  respectively  authorize,  en- 
courage, and  require  cities  to  set  up  such  agencies,  but  provide  for  no 
central  administrative  control. 


298       PRINCIPLES  OF  LABOR  LEGISLATION 

Some  few  states  create  a  state  employment  office,  but  make 
no  provision  for  local  branches.  Since  the  work  of  such  an 
office  must  be  conducted  almost  entirely  by  the  slow  and 
unsatisfactory  "mail  order"  method,  this  type  of  law  has  not 
yielded  very  important  results.  The  West  Virginia  bureau  at 
Wheeling  placed  about  2,000  applicants  each  year1  in  the 
eleven  years  following  its  establishment,  but  the  office  con- 
ducted in  Baltimore,  Md.,  under  the  law  of  1902  has  had 
only  a  nominal  activity,2  and  the  Nebraska  law  establishing 
a  public  employment  office  in  the  bureau  of  labor  has,  because 
of  lack  of  funds,  been  practically  a  dead  letter.3  So  ineffec- 
tive was  the  Maryland  office  that  in  1914  a  special  depart- 
ment was  created  in  the  local  immigration  bureau,  for  the 
purpose  of  securing  "efficient  farm  help  to  meet  the  de- 
mands for  such  labor  in  the  agricultural  communities  of  the 
state.'1 

The  remaining  states  which  have  legislated  upon  this  sub- 
ject authorize  the  establishment  of  local  offices,  usually  under 
control  of  the  bureau  of  labor.  This  is  the  most  important 
type  of  public  employment  bureau  law  in  this  country,  and  is 
well  exemplified  by  the  New  York  statute  of  i9i4.4 

By  this  statute  a  bureau  of  employment  is  established  in 
the  state  department  of  labor,  under  the  immediate  charge 
of  a  director,  who  must  be  under  civil  service  and  who  must 
have  "recognized  executive  and  managerial  ability,  technical 
and  scientific  knowledge  upon  the  subject  of  unemployment 
and  administration  of  public  employment  offices  and  recog- 
nized capacity  to  direct  investigations  of  unemployment 
and  public  and  private  agencies  for  remedying  the  same."  5 
The  industrial  commission  may  establish  such  local  offices  as 
it  deems  necessary,  each  to  be  in  charge  of  a  superintendent 

1  United  States  Bureau  of  Labor  Statistics,  Bulletin  No.  109    1912 
itistics  of  Unemployment  and  the  Work  of  Employment  Offices," 

2/6id.,  pp.  127-129. 
'  Ibid.,  p.  131. 

4  New  York,  Laws  1914,  C.  181. 

The  desire  of  the  framers  of  the  New  York  law  to  assure  the  selection 
illy  trained  men  for  the  work  of  managing  the  state  employment 
i  resulted  in  the  appointment  of  a  director  who  had  many  years  of 
experience  as  an  investigator  of  the  organization  and  methods  of  employ- 
ment bureaus. 


UNEMPLOYMENT  299 

under  the  general  supervision  of  the  director.  These  local 
offices  are  to  register  applications  from  those  seeking  employ- 
ment or  employers  seeking  workers,  and  make  periodic 
reports  to  the  director.  Any  office  may  be  subdivided  into 
separate  departments  for  men,  women,  and  juveniles,  or  other 
class  of  workmen,  as  farm  laborers.  The  service  is  to  be  free 
and  penalties  are  prescribed  for  the  acceptance  of  fees  by  the 
officials.  A  coordination  of  the  activities  of  the  local  bureaus 
is  to  be  facilitated  by  a  labor  market  bulletin  and  the  inter- 
change and  publication  of  lists  of  vacancies.  Partial  recog- 
nition is  given  to  the  common  European  policy  of  joint  control 
by  directing  the  commissioner  of  labor  to  appoint  for  each 
office  a  representative  committee  composed  of  employers  and 
employees,  with  a  chairman  agreed  upon  by  the  majority. 
On  the  request  of  a  majority  of  either  side  the  voting  on  any 
question  must  be  so  conducted  that  there  shall  be  an  equality 
of  voting  power  between  employers  and  employees,  notwith- 
standing the  absence  of  any  member.  Similar  committees 
have  under  the  Wisconsin  Industrial  Commission  been  for 
years  an  indispensable  adjunct  to  the  public  exchange  at 
Milwaukee,  and  are  provided  for  in  the  1915  laws  of  Illinois  l 
and  Pennsylvania.2  They  were  also  recommended  by  the 
first  official  International  Labor  Conference  in  1919. 

One  of  the  most  comprehensive  state  organizations  of  public 
employment  offices  was  that  effected  by  Ohio  to  meet  the 
state's  war-time  employment  problem.  At  the  outbreak  of 
the  war  seven  relatively  efficient  city-state  offices  were  in 
operation  in  large  industrial  centers.  In  June,  1917,  their 
management  was  turned  over  to  the  state  council  of  defense, 
which  divided  the  state  into  twenty-one  districts,  each  con- 
taining several  counties,  and  established  fourteen  additional 
offices,  so  that  there  was  one  in  the  principal  city  of  each  dis- 
trict. Certain  expenses  of  each  new  office  were  paid  by  the 
city  and  the  state.  The  staff  of  the  old  offices  was  also 
increased  to  provide  outside  men  to  solicit  orders  for  farm 
and  industrial  help  and  to  enable  the  offices  to  be  kept  open 
Saturday  afternoons  and  until  nine  o'clock  in  the  evening. 
A  central  clearing  house  was  organized  at  the  state  capitol. 

1  Illinois,  Laws  1915,  p.  414. 

2  Pennsylvania,  Laws  1915,  No.  373. 


300       PRINCIPLES  OF  LABOR  LEGISLATION 

Particular  attention  was  paid  to  supplying  farm  labor.  Each 
office  made  a  monthly  canvass  of  the  labor  needs  of  the  farmers 
in  its  district,  and  both  the  local  and  the  central  offices  carried 
on  publicity  campaigns  to  show  the  advantages  of  farm  work. 
Demands  for  help  which  could  not  be  met  locally  were  referred 
to  the  central  clearing  house. 

Perhaps  the  most  controversial  point  in  the  administration 
of  a  bureau  is  the  policy  to  be  pursued  in  time  of  strike  or 
lockout.  The  first  Illinois  law  establishing  state  exchanges 
in  1899  l  was  four  years  later  declared  unconstitutional  be- 
cause of  the  provision  that  applications  to  fill  places  vacant 
because  of  a  strike  were  not  to  be  received.2  The  court  held 
that  this  provision  deprived  citizens  of  the  equal  protection 
of  the  laws  guaranteed  by  the  fourteenth  amendment,  inas- 
much as  it  discriminated  between  employers  whose  men  were 
on  strike  and  other  employers,  and  also  between  workmen 
who  wished  to  take  places  vacant  because  of  a  strike  and  work- 
men who  did  not.  Wisconsin  had  a  similar  experience.  The 
healthy  instinct  of  which  this  prohibitory  clause  was  an  un- 
skilful manifestation  has  been  satisfied  in  most  American 
exchanges  by  publicity.  Under  the  New  York  law,  for  in- 
stance, either  party  to  a  trade  dispute  may  file  a  statement, 
which,  with  any  answer,  must  be  exhibited  at  the  exchange. 
The  prospective  employee  is  informed  of  the  statements  at 
the  same  time  that  he  is  informed  of  the  position,  and  it  is 
left  for  him  to  decide  whether  or  not  to  take  the  work.  In 
Massachusetts  it  is  even  the  practice  in  case  of  an  industrial 
dispute  to  stamp  the  introduction  card  which  the  employee 
is  to  present  to  the  employer  with  the  words,  "There  is  a 
strike  on  at  this  establishment."  Under  the  publicity  policy 
very  few  applicants  take  strike-breaking  jobs.  Employers 
and  labor  union  representatives  are  thoroughly  satisfied,  and 
consequently  the  exchange  escapes  the  rocks  of  disaster  on 
either  side.  As  an  important  corollary  to  this  method  of 
handling  a  strike  situation,  the  New  York  law  includes  the 
further  stipulation  that  no  applicant  is  to  suffer  any  dis- 
qualification or  prejudice  at  an  exchange  if  he  refuses  to  accept 
an  offered  job  on  the  ground  that  a  strike  or  lockout  exists 

1  Illinois,  Laws  1899,  p.  268. 

1  Mathews  v.  People,  202  111.  389,  67  N.  E.  28  (1903). 


UNEMPLOYMENT  301 

or  because  the  wages  offered  are  lower  than  those  current  in 
the  district  for  the  same  work.1 

Careful  registration  of  all  applicants  is  provided  for,  and 
the  industrial  commission  may  also  specify  the  form  of  regis- 
ters for  private  agencies  which  must  furnish  information  on 
request.  Five  per  cent,  of  the  annual  appropriation  for  the 
bureau  may  be  spent  in  advertising. 

A  special  feature  of  the  law  is  the  provision  for  assistance 
to  juveniles  somewhat  similar  to  the  English  system.  Chil- 
dren of  working  age  may  register  at  the  schools,  and  a  sub- 
committee composed  of  employers,  workmen,  and  persons 
familiar  with  education  or  other  conditions  affecting  juveniles 
must  be  appointed  by  the  advisory  committee  to  advise  in 
regard  to  the  management  of  the  juvenile  department  of  the 
employment  offices  and  otherwise  to  assist  parents  and  chil- 
dren with  respect  to  the  choice  of  employment.  No  other 
American  law  contains  an  exactly  similar  provision,  though  in 
a  few  offices  energetic  superintendents  are  endeavoring  to  de- 
velop this  side  of  their  work,  and  in  the  Pennsylvania  act  of 
1915  special  arrangements  are  made  for  cooperation  with 
school  placement  bureaus  and  with  the  school  authorities 
generally. 

Often,  as  has  been  recognized  in  the  British  and  German 
systems,  lack  of  railroad  fare  to  reach  an  offered  position  is 
a  serious  obstacle  to  a  willing  but  moneyless  worker,  yet  no 
American  state  authorizes  its  employment  bureau  officials  to 
advance  the  needed  transportation.  A  few  superintendents 
do,  however,  advance  fares  in  exceptional  cases,  and  the  Wis- 
consin exchanges  frequently  turn  over  to  applicants  the  trans- 
portation advanced  by  the  prospective  employer,  checking 
the  man's  baggage  to  the  employer  as  a  safeguard.  During 
the  war  the  Minnesota  Commission  of  Public  Safety  set  aside 
$1,000  to  be  used  as  a  revolving  fund  for  advancing  fares  to 
men  placed  by  the  state  employment  office.  Considerable 


1  The  Illinois  court,  however,  following  its  line  of  argument  in  the 
Mathews  case  (see  p.  300),  has  declared  even  the  requirement  of  pub- 
licity on  labor  disputes  to  be  unconstitutional,  on  the  ground  of  threefold 
discrimination  between  certain  employers  and  others,  between  certain 
workmen  and  others,  and  between  employers  and  other  persons  making 
contracts.  (Josma  v.  Western  Steel  Car  &  Foundry  Co.,  249  111.  508, 
94  N.  E.  945  (1911)-) 


3o2       PRINCIPLES  OF  LABOR  LEGISLATION 

care  was  exercised  in  selecting  the  men  to  receive  these  ad- 
vances. In  each  of  two  years'  experience  the  losses  from  the 
fund  were  less  than  5  per  cent.,  and  arose  ordinarily  from  the 
farmers  to  whom  men  were  sent  securing  other  help  and  then 
refusing  to  reimburse  the  employment  office. 

Of  the  exchanges  initiated  by  municipalities  under  their 
own  charters,  the  Seattle  office  established  in  1894  has  been 
among  the  most  successful,  filling  33,342  positions  in  IQI3-1 
An  important  part  of  the  activity  of  this  office  has  been  the 
shipment  of  unskilled  workers  to  hop-fields  and  lumber-camps 
in  large  groups,  which  has  helped  to  keep  the  per  capita  cost 
of  filling  positions  down  to  the  phenomenally  low  figure  of 
4  cents. 

During  the  winter  of  1914-1915  several  public  employment 
bureaus  and  labor  department  officials  in  the  grain-raising 
states  organized,  in  cooperation  with  the  United  States  De- 
partments of  Labor  and  of  Agriculture,  the  National  Farm 
Labor  Exchange  for  the  efficient  placing  of  harvest  hands. 
Since  harvesting  begins  two  months  earlier  in  the  southern 
than  in  the  northern  part  of  the  country,  and  furnishes  at 
most  only  a  few  weeks'  work  in  any  one  place,  it  was  felt 
necessary  to  develop  some  means  for  more  carefully  directing 
the  large  numbers  of  workers  who  "follow  the  crops,"  and  for 
preventing  hardship  to  them  by  loss  of  time  and  by  congestion 
in  districts  already  flooded  with  workers.  But  the  exchange 
has  no  administrative  powers  and  "represents  simply  a  means 
of  exchanging  information  and  effecting  personal  contact 
between  the  offices  in  the  several  states.  It  does  not  con- 
stitute an  organization  of  the  middle  west  market  for  harvest 
labor.  But  it  is  a  short  step  in  the  right  direction."  2 

Notwithstanding  the  good  work  of  a  few,  however,  the  state 
and  municipal  bureaus  are  still  far  from  furnishing  an  ade- 
quate medium  for  the  exchange  of  information  on  oppor- 
tunities for  employment.  Only  about  half  the  states  are 
represented.  Due  to  lack  of  civil-service  requirements,  many 
of  the  managers  are  political  place-holders  of  worse  than 
mediocre  attainments.  Some  of  the  offices  exist,  as  has  been 
seen,  only  on  paper,  others  are  poorly  located,  in  out-of-the- 

|  Twentieth  Annual  Report  of  Public  Employment  Office,  Seattle,  1913. 
1  Don  D.  Lescohier,  The  Labor  Market,  1919,  p.  173. 


UNEMPLOYMENT  303 

way  places,  and  inadequately  heated,  lighted,  and  ventilated. 
Many  have  therefore  driven  away  the  better  class  of  workers, 
and  deal  only  with  casuals.  Appropriations  are  usually  too 
small  for  efficiency.  A  uniform  method  of  record-keeping  has 
yet  to  be  adopted.  Statistics  are  non-comparable,  and  fre- 
quently unreliable,  if  not  wholly  valueless.1  There  is  prac- 
tically no  interchange  of  information  between  various  offices 
in  a  state  or  between  states.  In  short,  workmen  are  still 
undergoing  want,  hardship,  and  discouragement  even  though 
often  within  easy  reach  of  the  work  which  would  support 
them,  if  they  but  knew  where  to  find  it. 

Nor  does  the  evil  end  there.  Every  one  who  has  studied 
the  problem  realizes  that  method  and  system  in  putting  men 
and  opportunities  for  work  in  touch  with  each  other  will  not 
of  themselves  prevent  over  supply  of  labor  or  of  jobs.  They 
will  do  so  no  more  than  the  cotton  exchange  guards  against 
an  over-  or  an  undersupply  of  cotton.  They  will  serve  merely 
as  levelers  in  the  scales  of  labor  supply  and  labor  demand. 
Besides  the  unemployment  which  is  due  to  the  failure  of  men 
and  jobs  to  find  each  other,  there  is  much  due  to  other  causes 
which  even  the  best  system  of  employment  exchanges  would 
not  directly  eliminate. 

But  close  students  agree  that  these  other  causes  of  unem- 
ployment cannot  be  successfully  attacked  without  a  basis  in 
comprehensive,  conscientiously  collected  information  such  as 
cannot  be  furnished  by  our  present  machinery  for  dealing 
with  the  problem.  Under  present  methods  there  exists  no 
automatic,  cumulative  means  for  collecting  the  facts.  This 
results,  of  course,  in  exaggerated  statements  in  both  direc- 
tions. Our  paucity  of  information  on  this  complex  and  vital 
question  has  continued,  even  though  labor  problems  in  one 
form  or  another  have  taken  the  lead  as  subjects  for  legisla- 
tion. Any  scientific  lawmaking  on  the  programs  of  social 
insurance — especially  unemployment  insurance — and  of  vo- 
cational guidance  must  be  grounded  on  facts  of  relative  em- 
ployment and  unemployment  of  the  workers,  by  trades,  by 
sexes,  and  by  ages.  Without  a  nation-wide  system  of  labor 

1  For  a  full  discussion  of  these  statistics,  see  "Operation  of  Public  Em- 
ployment Exchanges  in  the  United  States,"  American  Labor  Legislation 
Review,  May,  1914,  pp.  359~37i- 


3o4       PRINCIPLES  OF  LABOR  LEGISLATION 

exchanges,  no  basis  can  exist  for  anticipating  in  an  accurate 
manner  the  ebbs  and  flows  of  the  demand  for  labor.  With- 
out concentration  of  the  information  now  collected  and  now 
held  separately  in  thousands  of  separate  organizations  through- 
out the  land,  the  possibility  of  looking  into  the  future,  or  of 
profiting  by  the  past,  is  out  of  the  question.  A  further  step 
is  the  coordination  of  the  various  national  systems  through  the 
International  Labor  Office  set  up  under  the  League  of  Nations, 
as  recommended  by  the  first  official  International  Labor  Con- 
ference in  1919. 

(2)  Federal  Activity 

Growing  realization  of  the  foregoing  facts,  which  were 
emphasized  by  the  war-time  scramble  for  labor,  led  to  the 
development  of  the  United  States  Employment  Service.  The 
service  has  had  a  checkered  career.  It  began  as  a  means  for 
the  placement  of  immigrants  on  farms,  inaugurated  by  the 
federal  Bureau  of  Immigration  in  1907.  In  January,  1915, 
the  service  was  extended  to  cover  all  occupations  and  all 
classes  of  workers.  By  January,  1918,  it  operated  over  ninety 
offices  in  various  parts  of  the  country.  It  made  efforts  to 
cooperate  with  state  public  bureaus  in  New  Jersey,  Illinois, 
and  elsewhere,  and  set  up  a  special  division  of  "reserves" 
intended  to  provide  for  war  needs.  About  30,000  skilled 
workers  were  enrolled  in  the  "Public  Service  Reserves,"  who 
agreed  to  enter  war  jobs  when  requested  by  the  government, 
and  about  150,000  boys  between  sixteen  and  twenty-one 
enlisted  in  the  "Boys'  Working  Reserve"  for  farm  or  other 
war  work  during  their  summer  vacation.  The  service  was 
handicapped,  however,  by  small  appropriations,  by  its  subor- 
dinate position  in  another  bureau,  and  by  the  fact  that  many 
of  its  employees  were  immigration  officials,  whose  main  line 
of  work  was  not  labor  placement. 

On  January  3,  1918,  a  first  step  toward  the  creation  of  a 
worthy  national  system  was  taken  when  the  Secretary  of 
Labor  announced  the  separation  of  the  Employment  Service 
from  the  Bureau  of  Immigration.  Besides  the  Division  of 
Reserves,  the  service  then  consisted  of  the  Division  of  Inves- 
tigation, the  Women's  Division,  the  Division  of  Farm  Labor, 
and  the  Division  of  Information,  Administration,  and  Clear- 


UNEMPLOYMENT  305 

ance.  Complaints  were  already  heard  of  a  shortage  of  labor 
in  eastern  war  plants,  and  the  possibility  of  labor  conscription 
was  discussed.  But  in  the  absence  of  adequate  national 
organization  there  was  little  authentic  information  as  to  the 
real  state  of  the  labor  market.  The  director  of  the  employ- 
ment service  stated  his  belief,  however,  that ' '  a  national  labor 
shortage  was  a  myth.  The  apparent  general  shortage  in 
certain  states  is  due  to  faulty  distribution." 

In  the  reorganization  of  the  Department  of  Labor  into  the 
main  national  agency  for  war  labor  administration,  which 
soon  took  place,  the  Employment  Service  was  recognized  as 
one  of  the  eight  new  divisions  established.  It  was  granted 
$2,000,000  from  the  President's  emergency  fund  and  began 
developing  cooperation  with  all  state  and  municipal  systems 
and  opening  new  offices  at  the  rate  of  almost  100  a  month. 

By  October  21,  1918,  832  offices  had  been  opened,  covering 
every  state,  the  District  of  Columbia,  and  Porto  Rico.  There 
were  sixty-four  offices  in  Illinois,  sixty-nine  in  New  York,  and 
seventy-four  in  Pennsylvania.  A  number  of  the  offices  were 
for  men  or  women  workers  exclusively,  and  several  were 
devoted  to  placing  railroad  or  farm  labor.  One  Chicago  office 
supplied  demands  for  engineers  and  teachers.  In  June,  1918, 
the  Employment  Service  took  control  of  the  hiring  of  dock 
labor.  A  scheme  for  regulating  the  hiring  of  longshoremen, 
first  worked  out  in  New  York  City,  replaced  the  former 
chaotic  conditions  by  a  systematic  organization  of  the  port. 
A  central  employment  office  was  established  with  branches  at 
every  pier  devoted  to  trans- Atlantic  trade.  Clearing  houses 
were  set  up  to  facilitate  the  transfer  of  men  from  piers  where 
labor  was  not  needed  to  those  where  it  was  in  demand.  Em- 
ployers made  a  daily  report  of  their  labor  needs,  including 
scheduled  ship  arrivals,  loading  plans,  and  other  facts  neces- 
sary to  inform  the  bureaus  of  the  number  of  longshoremen 
wanted  and  at  what  time.  The  plan  was  similar  to  the  port 
organization  at  London  and  Liverpool,  England,  whose  adop- 
tion has  long  been  advocated  by  students  of  employment 
methods. 

Special  plans  for  handling  farm  labor  were  also  devised. 
The  services  of  all  third  and  fourth  class  postmasters  and  rural 
mail  carriers  were  enlisted  to  receive  applications  and  send 


3o6       PRINCIPLES  OF  LABOR  LEGISLATION 

all  orders  not  filled  locally  to  the  nearest  public  office.  News- 
papers in  cities  of  over  20,000  which  had  no  public  offices  were 
also  asked  to  do  similar  work.  Field  agents  were  sent  out  in 
sections  where  the  problem  of  farm  labor  was  most  acute. 
The  cooperation  of  the  Department  of  Agriculture  was 
secured,  and  its  country  agents  reported  local  shortages  of 
help.  During  the  harvest  season  temporary  offices  were 
opened  in  the  wheat  belt  from  Oklahoma  to  North  Dakota 
to  mobilize  the  harvest  hands. 

Besides  its  great  expansion,  the  administrative  machinery 
of  the  federal  Employment  Service  was  completely  reorganized 
during  the  year.  In  the  administrative  work  at  Washington 
the  following  five  divisions  were  created:  Control,  Field  Or- 
ganization, Clearance,  Personnel,  and  Information.  The  Con- 
trol Division  was  in  charge  of  general  correspondence,  statistics 
and  research,  expenditures,  and  accounts.  The  Field  Organi- 
zation Division  supervised  the  office  organization,  while  the 
Clearance  Division  handled  reports  on  labor  supply  and  dis- 
tributed unfilled  requests  for  help.  The  Personnel  Division 
dealt  with  the  selection  and  training  of  help  and  worked  out 
a  standard  classification  of  occupations.  Publicity  and  the 
weekly  U.  S.  Employment  Service  Bulletin  were  in  charge  of 
the  Information  Division.  The  thirteen  employment  districts 
into  which  the  country  had  been  divided  were  abolished,  and 
the  responsibility  for  organization  centered  in  a  federal  direc- 
tor of  employment  in  each  state.  To  advise  the  directors  on 
general  questions  of  policy,  " state  advisory  boards"  were 
formed,  consisting  at  first  of  two  representatives  of  employees 
and  two  of  employers.  On  October  15,  1918,  these  boards 
were  asked  to  add  two  women  members,  who  should  also 
represent  employers  and  employees  respectively. 

Under  its  expanded  organization  the  federal  Employment 
Service,  between  January,  1918,  and  March,  1919,  received 
applications  for  no  fewer  than  10,164,000  workers,  registered 
5»323»5°9  persons,  referred  4,906,556  to  positions,  and  reported 
3.776.750  positions  filled.  Far-reaching  dependence  of  em- 
ployers on  the  service  began  on  August  i,  1918,  when  by 
presidential  proclamation  all  employers  engaged  in  war  work 
who  employed  more  than  100  persons  were  required  to  hire 
their  unskilled  laborers  through  the  service. 


UNEMPLOYMENT  307 

Following  the  cessation  of  hostilities,  the  service  attempted 
to  direct  the  replacement  of  soldiers  and  war  workers  in  civil 
pursuits.  In  cooperation  with  chambers  of  commerce,  local 
councils  of  defense,  and  other  agencies,  it  established  1,850 
special  bureaus  for  the  placement  of  returning  soldiers  and 
sailors.  Representatives  of  the  service  were  stationed  in  the 
demobilization  camps  to  help  the  soldiers  go  direct  from  the 
camp  to  employment. 

But  the  service,  in  its  expanded  form,  was  entirely  a  creation 
of  the  war  emergency,  set  up  under  the  President's  war  powers 
and  financed  by  war  funds.  Its  machinery  had  to  be  built 
up  and  operated  at  the  same  time.  In  nine  months  it  opened 
twice  as  many  offices  as  England  opened  in  four  years.  In 
the  circumstances  it  was  probably  inevitable  that  certain 
weaknesses  in  organization  and  personnel  should  appear. 
Some  employers  also  attacked  the  service  on  the  alleged 
ground  that  it  was  dominated  by  organized  labor,  and  it  was 
charged  that  private  fee-charging  agencies  carried  on  a  sub- 
terranean campaign  against  it.  In  March,  1919,  Congress 
refused  to  grant  a  deficiency  appropriation  of  $1,800,000  to 
carry  it  to  June  30,  the  end  of  the  fiscal  year.  It  was  first 
stated  that  it  would  be  necessary  to  cut  down  the  offices  80 
per  cent.,  but  through  the  cooperation  of  cities,  states,  and 
voluntary  welfare  organizations,  the  continuance  of  364  offices 
was  secured  for  a  time.  For  the  next  fiscal  year,  however, 
the  service  asked  Congress  for  $4,600,000  and  received  only 
$400,000.  On  October  10,  1919,  it  was  announced  that  all 
the  local  offices  were  closed  for  lack  of  funds,  and  the  only 
remaining  activity  would  be  the  supplying  of  information  to 
local  public  offices. 

In  April,  after  the  first  reduction  in  the  service,  a  measure 
was  introduced  in  Congress  providing  for  a  permanent 
federal  employment  system,  cooperating  with  local  offices 
on  a  subsidy  plan.  But  no  action  had  been  taken  on  the 
bill  up  to  January  i,  1920,  and  in  the  temper  of  Congress 
at  the  time  immediate  action  seemed  unlikely.  Yet  sooner 
or  later  the  United  States  must  fall  into  line  with  other 
modern  industrial  countries  and  organize  its  labor  market 
through  an  efficient  national  system  of  public  employment 
bureaus. 


308      'PRINCIPLES  OF  LABOR  LEGISLATION 

(j)  European  National  Systems 

The  first  European  legislation  to  establish  a  well-unified  and 
distinctly  national  system  of  employment  bureaus  was  the 
British  labor  exchanges  act  of  September  20,  ipog.1  Earlier 
efforts  at  establishing  such  bureaus  were  made  by  the  Central 
Unemployed  Body  for  London  in  1906,  under  authority  of 
the  unemployed  workmen  act  of  1905,  and  the  resulting  offices 
supplied  the  main  essentials  of  the  present  British  system. 

The  act  of  1909  gave  to  the  board  of  trade,  a  body  corre- 
sponding somewhat  to  our  federal  Departments  of  the  In- 
terior, Commerce,  and  Labor,  large  discretionary  powers  as 
to  the  details  of  the  system.  The  board  was  authorized  to 
establish  or  take  over  labor  exchanges  wherever  it  thought  fit, 
to  make  regulations  for  the  management  of  these  agencies, 
to  assist  bureaus  maintained  by  any  other  authorities,  and  to 
establish  advisory  committees  to  assist  in  the  management  of 
the  exchanges.  With  the  approval  of  the  treasury,  it  might 
authorize  loans  to  cover  traveling  expenses  of  workers  for 
whom  employment  had  been  found  through  an  employment 
exchange.  In  1917  the  administration  of  the  system  was 
transferred  to  the  newly  created  ministry  of  labor. 

The  general  regulations 2  made  by  the  board  under  au- 
thority of  the  act  set  forth  in  great  detail  the  rules  of  organiza- 
tion and  management  of  the  offices.  Registrations  of  appli- 
cants must  usually  be  made  in  person  and  renewed  after  seven 
days  if  employment  is  not  obtained.  During  a  labor  dispute 
the  parties  are  permitted  to  file  statements  in  regard  to  the 
disagreement  and  applicants  are  to  be  informed  of  its  exist- 
ence. Applicants  who  refuse  positions  because  of  labor  dis- 
putes, or  because  the  wages  offered  are  lower  than  those 
current  in  the  trade,  do  not  sacrifice  any  of  their  privileges  to 
future  services  of  the  exchanges.  The  offices  "  shall  undertake 
no  responsibility  with  regard  to  wages  or  other  conditions" 
beyond  supplying  what  information  may  be  in  their  possession. 

The  general  regulations  also  prescribe  the  conditions  on 

» 9  Edw.  7,  C.  7.  For  full  text  see  Bulletin  of  the  International  Labor 
Office,  1910,  p.  21. 

^ 2  General  Regulations  for  Labour  Exchanges  Managed  by  the  Board  of 
Trade,  January  28,  iqio. 


UNEMPLOYMENT  309 

which  railroad  fares  may  be  advanced  as  loans  to  workmen 
who  are  sent  to  other  towns  to  take  employment.  No  ad- 
vances are  to  be  made  unless  the  distance  to  be  traveled  is 
more  than  five  miles,  nor  to  points  where  a  labor  dispute  is 
in  progress  or  when  the  wages  offered  are  below  the  current 
rates.  Care  is  also  to  be  taken  to  avoid  "unduly  encourag- 
ing rural  laborers  to  migrate  from  the  country  to  towns." 
In  the  first  thirty-eight  months  of  the  operation  of  the  ex- 
changes they  made  advances  to  28,321  workmen,  totaling 
$40,360,  of  which  sum  only  1.6  per  cent,  had  been  written  off 
as  irrecoverable.1  About  $48,400  a  month  was  advanced  for 
fares  in  1918. 

Prior  to  the  transfer  of  the  exchanges  to  the  ministry  of 
labor,  advisory  committees,  consisting  of  equal  numbers  of 
representatives  of  employers  and  workmen  appointed  by  the 
board  of  trade,  with  a  chairman  appointed  by  a  majority  of 
each  group  or  chosen  by  the  board,  were  formed  for  large  areas. 
At  least  one  was  organized  in  each  of  the  eight  main  districts 
of  the  system.  The  committees  considered  mainly  questions 
of  general  principle  referred  to  them  by  the  board  of  trade. 
But  beginning  in  1917,  the  ministry  of  labor  developed  a  large 
number  of  local  advisory  committees  having  jurisdiction  over 
one  or  more  exchanges.  Two  hundred  and  fifty  of  such  com- 
mittees were  established.  Besides  equal  numbers  of  employ- 
ers and  employees  they  might  include  small  numbers  of  other 
persons  nominated  by  the  ministry  to  represent  "other  inter- 
ests." They  might  consider  any  matter  connected  with  the 
operation  of  the  exchange. 

Special  recognition  has  been  given  in  Great  Britain  to  the 
need  of  agencies  for  assisting  juvenile  workers  in  choosing 
an  occupation,  finding  employment  in  that  occupation,  and 
avoiding  frequent  changes  in  the  early  years  of  their  working 
experience.  Under  the  labor  exchanges  act  and  under  the 
education  (choice  of  employment)  act  of  1910  two  distinct 
methods  for  the  organization  of  juvenile  exchanges  have 
been  developed. 

Under  the  labor  exchanges  act  the  board  of  trade  issued  in 
April,  1913,  its  special  rules  with  regard  to  the  registration 

1  W.  H.  Beveridge  and  C.  F.  Rey,  Quarterly  Journal  on  Unemployment, 
July-September,  1913,  p.  77. 


3io       PRINCIPLES  OF  LABOR  LEGISLATION 

of  juvenile  applicants.  These  rules  provide  that  the  board 
may  appoint,  after  consultation  with  the  local  advisory  trade 
committees,  special  advisory  committees  for  juvenile  employ- 
ment, to  be  composed  of  persons  representing  employers  and 
workmen,  and  of  persons  familiar  with  education  and  other 
conditions  affecting  juveniles.  In  addition  to  advising  the 
board  with  regard  to  juvenile  employment,  the  committees 
assist  boys  and  girls  with  respect  to  their  choice  of  occupation. 
Thus  the  juvenile  exchange  is  made  an  integral  part  of  the 
adult  exchange,  cooperation  with  the  schools  is  secured  through 
the  special  advisory  committee,  and  duplication  of  effort  is 
avoided.  This  system  is  perhaps  the  one  best  adapted  to 
American  needs. 

Under  the  education  act,  on  the  other  hand,  the  situation 
is  reversed.  The  law  authorizes  "local  education  authorities 
to  give  girls  and  boys  information,  advice,  and  assistance  with 
respect  to  the  choice  of  employment,"  l  if  such  work  is  not  being 
done  by  any  other  agency.  Under  this  system,  accordingly, 
the  juvenile  labor  exchange  is  a  part  of  the  school  system, 
frequently  its  offices  are  in  the  education  building,  and  co- 
operation with  the  adult  exchange  established  by  the  board 
of  trade  is  secured  through  the  advisory  committee.  The 
system  has  many  good  features,  such  as  the  close  supervision 
of  the  educational  authorities  over  the  placement  work,  but 
is  weakened  by  imperfect  correlation  between  the  two  ex- 
changes. Liverpool  furnishes  a  good  example  of  this  method, 
while  the  London  offices  typify  the  first.2 

Starting  with  sixty-one  offices  in  1910,  the  number  was  in- 
creased until  391  were  in  operation  during  the  war  period. 
In  addition  there  were  173  local  agents  in  smaller  centers,  and 
i, 080  part-time  officers  "appointed  primarily  for  the  admin- 
istration of  unemployment  insurance  in  districts  where  the 
establishment  of  an  exchange  would  not  be  justified."  3  Al- 
though the  country  is  only  one-twenty-fifth  as  large  in  area 

1  Quotation  from  title  of  act,  10  Edw.  7  &  i  Geo.  5,  C.  37.  For  full 
text  see  Bulletin  of  the  International  Labor  Office,  Vol.  VI,  p.  36. 

1  See  Elsa  Ueland,  "Juvenile  Employment  Exchanges,"  American  Labor 
Legislation  Review,  June,  1915,  pp.  203-237. 

" Value  of  the  British  Employment  Exchanges  during  the  War," 
United  States  Bureau  of  Labor  Statistics,  Monthly  Labor  Review,  Sep- 
tember, 1918,  p.  780. 


UNEMPLOYMENT 


311 


as  America,  it  is  divided  into  eight  districts — six  for  England 
and  Scotland,  one  for  Wales,  and  one  for  Ireland.  Each  dis- 
trict has  its  divisional  office  or  clearing  house,  which  is  in  turn 
coordinated  with  the  central  office  in  London.  During  the 
war  further  subdivision  was  made,  and  forty-five  "clearing 
areas  "'were  established,  each  containing  a  clearing  office 
covering  from  two  to  thirty-one  local  exchanges.  Notices  of 
unfilled  positions  are  first  circulated  among  the  offices  of  the 
clearing  area,  and  then,  if  necessary,  and  if  the  position  is  one 
for  which  a  worker  may  suitably  be  brought  in  from  a  distance, 
they  are  sent  to  the  central  office  in  London,  from  which  a 
description  goes  next  day  to  every  exchange  in  the  country. 
The  national  clearing  house  was  said  to  circulate  about  21,000 
notices  of  vacancies  a  day  in  1918.  The  exchanges  bore  the 
brunt  of  supplying  the  labor  demands  of  the  war  and  the  not 
less  arduous  task  of  resettling  workers  and  soldiers  in  peace- 
time occupations,  filling  about  1,000,000  vacancies  annually. 
They  are  officially  recognized  to  have  been  "of  the  greatest 
value"  in  this  connection. 

The  following  table  shows  the  volume  of  work  of  the  ex- 
changes during  the  first  nine  years  of  their  existence : 

OPERATION    OF    BRITISH    LABOR    EXCHANGES,    BY    YEARS  1 


Year 

Number  of 
Registrations 

Vacancies 
Reported  by 
Employers 

Vacancies 
Filled 

IOIO  2 

1,590,017 

458,943 

-174,717 

IQII 

2,040,447 

788,609 

621,410 

IQI2                                              

2,465,304 

1,062,574 

828,230 

IQI7 

2,o6s,8<n 

1,222,828 

Q2I  8S*. 

IQI4 

3,442,452 

I.479.O24 

1.  1  16.QOQ 

IQI  T 

3,186,137 

1,797,646 

1,106.1  17 

1916                                

3,658,689 

2,O49,Ol8 

I.SS7.23S 

IQI7 

3,575,380 

1,999,442 

1,555,223 

1918  

3,739,064 

2,067,217 

1,514,712 

National  subsidies  play  an  important  r61e  in  European  em- 
ployment bureau  legislation.  Several  countries  try  to  raise 
the  efficiency  of  local  public  employment  bureaus  by  grant- 
ing subsidies  only  to  "recognized"  offices,  that  is,  offices  which 

1  Great  Britain,  Ministry  of  Labor,  Labour  Gazette,  March,  1919,  p.  83. 

2  Eleven  months. 


3i2       PRINCIPLES  OF  LABOR  LEGISLATION 

have  conformed  to  the  standards  fixed  by  the  national  govern- 
ment. Switzerland,  Belgium,  and  the  three  Scandinavian 
countries  have  legislation  of  this  character.  In  the  Swedish 
law  subsidies  were  authorized  to  meet  the  expense  of  special 
measures  adopted  to  place  workmen  on  the  land,  and  the 
public  bureaus  have  in  consequence  been  especially  useful  in 
agriculture,  drawing  back  into  the  country  the  superfluous 
labor  of  the  towns.  In  1912  of  the  105,000  positions  filled 
by  the  thirty-two  bureaus,  26,000  were  in  agricultural  pur- 
suits.1 The  Danish  act  of  April  29,  1913,  is  one  of  the  most 
important  of  European  laws  relating  to  public  employment 
offices.2  It  provides  for  the  establishment  of  a  central  ex- 
change at  Copenhagen,  and  authorizes  branch  exchanges  to 
be  conducted  by  towns,  counties,  or  groups  of  towns.  The 
minister  of  the  interior  is  authorized  to  designate  some  of 
the  recognized  offices  to  act  as  central  exchanges  for  sec- 
tions of  the  country.  To  supervise  the  entire  system  the  king 
must  appoint  a  director  of  labor  exchanges,  among  whose 
duties  is  that  of  maintaining  cooperation  among  the  recog- 
nized local  exchanges.  In  Germany  up  to  the  outbreak  of 
the  world  war  several  hundred  public  employment  offices 
were  maintained  by  cities  and  voluntary  associations.  The 
majority  of  these  offices  were  united  in  a  loose  voluntary  fed- 
eration, and  received  subsidies  from  cities,  states,  and  the 
national  government.  Early  in  the  war  an  effort  was  made 
to  secure  greater  centralization  by  the  creation  of  an  imperial 
employment  bureau  to  cooperate  with  the  municipal  ex- 
changes, trade  unions,  and  other  interested  bodies.3 

3.  SYSTEMATIC  DISTRIBUTION  OF  PUBLIC  WORK 

A  well-developed  system  of  labor  exchanges  cannot,  of 
course,  create  jobs,  but  in  addition  to  bringing  the  jobless 
workers  quickly  and  smoothly  in  contact  with  such  opportuni- 
ties as  exist  it  can  register  the  rise  and  fall  in  the  demand  for 
labor.  This  knowledge  would  make  possible  intelligent  action 
for  the  prevention  and  relief  of  unemployment  through  the 

1  Erik  Sjostrand,  Quarterly  Bulletin  on  Unemployment,  July-September, 
19I3.  P-  885. 


°f  the  International  Labor  Office,  1914,  pp.  1-5. 
•Ahx  Westerkamp,  The  Survey,  January  23,  1915,  p.  441. 


UNEMPLOYMENT  313 

systematic  distribution  of  public  work  and  the  pushing  of 
necessary  projects  when  private  industry's  demand  for  labor 
is  at  a  low  level.  Public  work  would  then  act  as  a  sponge, 
absorbing  the  reserves  of  labor  in  bad  years  and  slack  seasons, 
and  setting  them  free  again  when  the  demand  for  them  in- 
creases in  private  business. 

(l)  Emergency  Work 

Probably  ever  since  unemployment  became  a  modern  in- 
dustrial problem  there  have  been  more  or  less  insistent  de- 
mands that  the  machinery  of  government  be  used  for  putting 
temporarily  to  work  those  who  were  displaced  from  private 
industry  during  a  period  of  depression.  It  was  felt  that  sup- 
porting the  unemployed  in  this  way,  or,  rather,  thus  giving 
them  the  chance  under  community  direction  to  support  them- 
selves, was  preferable  to  supporting  them  either  by  public 
relief  or  by  private  charity.  It  was  not  likely  to  cost  any 
more,  the  stigma  of  pauperism  would  not  be  fastened  upon 
self-respecting  persons  out  of  work  through  no  fault  of  their 
own,  and,  finally,  some  improvement  of  permanent  value 
to  the  community  would  have  been  furthered. 

As  early  as  the  panic  year  of  1857,  when  70,000  were  esti- 
mated to  be  unemployed  in  New  York  alone,  Mayor  Wood 
of  that  city  sent  to  the  common  council  a  message  in  which 
he  said: 

"I  recommend  that  the  comptroller  be  authorized  to  adver- 
tise for  estimates  for  furnishing  the  corporation  with  50,000 
barrels  of  flour  and  a  corresponding  quantity  of  corn-meal 
and  potatoes,  to  be  paid  for  by  the  issue  of  a  public  construc- 
tion stock  redeemable  in  fifty  years,  and  paying  7  per  cent, 
interest;  these  provisions  to  be  disposed  of  to  laborers  to  be 
employed  upon  public  works,  at  their  cost  price  to  the  cor- 
poration, all  these  works  to  be  commenced  forthwith  under 
the  proper  departments.  Twenty-five  per  cent,  should  be 
paid  in  cash.  Every  man  who  will  labor  should  be  employed 
at  a  fair  compensation,  and  the  supplies  thus  provided  be 
distributed  in  return."  l 


1  Report  of  the  Massachusetts  Board  to  Investigate  the  Subject  of  the  Un- 
employed, 1895,  Part  IV,  pp.  7-8, 


3i4       PRINCIPLES  OF  LABOR  LEGISLATION 

Apparently  the  mayor's  suggestion  was  not  acted  upon, 
but  Central  Park  was  then  under  construction  and  the  city 
comptroller  arranged  to  advance  to  the  park  commissioners 
$1,000  a  day  until  such  time  as  the  city  should  take  $25,000 
of  the  bonds.  The  commissioners  agreed  in  return  to  select 
not  exceeding  1,000  of  their  workmen  proportionally  from  the 
residents  of  each  ward.1  In  this  way  a  considerable  portion 
of  the  work  was  made  available  when  it  could  exert  the  largest 
influence  in  preventing  destitution  and  demoralization. 

During  the  severe  unemployment  crisis  of  1914-1915  over 
100  cities  throughout  the  country  made  special  provision  for 
carrying  on  public  work  of  various  sorts,  such  as  sewer-build- 
ing, street-  and  road-making,  quarrying,  forestry,  drainage, 
waterworks,  building,  painting,  and  even  clerical  duties.  The 
work  was  maintained  for  periods  ranging  from  less  than  a 
month  to  more  than  six  months,  thousands  of  men  were  em- 
ployed in  from  two-day  to  two-week  shifts,  and  hours  and 
rates  of  pay  were  as  a  rule  the  same  as  for  regular  employees 
on  the  same  grade  of  labor.  In  the  majority  of  cases  the 
officials  in  charge  declared  that  they  had  secured  full  efficiency 
from  the  workmen,  and  some  even  stated  that  necessary  work 
had  been  done  at  a  distinct  saving. 

Experiences  with  emergency  work  have  not  always  been 
gratifying.  Poor  work,  increased  expense  to  the  community, 
and  political  favoritism  in  the  selection  of  applicants  are 
among  the  faults  which  have  frequently  interfered  with  its 
accomplishing  what  was  expected  of  it.  On  the  whole,  how- 
ever, the  opinion  has  been  growing  that  these  flaws  are  not 
inherent,  but  due  to  poor  administration,  and  that,  if 
properly  managed,  emergency  work  can  be  made  an  im- 
portant agency  in  maintaining  during  slack  periods  the 
labor  reserves  needed  when  industry  is  booming.  To  secure 
the  best  results  it  must,  of  course,  be  kept  out  of  the  hands 
of  politicians. 

The  policy  of  giving  temporary  relief  employment  is  em- 
bodied into  law  in  the  English  unemployed  workmen  act  of 
IQOS»  by  which  the  central  administrative  body  for  London 
was  authorized  to  provide  temporary  work  for  the  unem- 

1  Report  of  the  Massachusetts  Board  to  Investigate  the  Subject  of  the  Un- 
employed, 1895,  Part  IV,  pp.  9-10. 


UNEMPLOYMENT  315 

ployed.1  An  attempt  was  made  in  this  statute  to  differentiate 
relief  employment  from  charity  by  stipulating  that  laborers 
accepting  work  were  not  to  be  disfranchised.  In  Germany 
relief  work  for  the  non-resident  unemployed  is  often  associated 
with  hotels  for  itinerant  workers.  Several  hundred  of  these, 
known  as  Herbergen,  are  private  enterprises,  but  a  more  modest 
type  of  relief  stations,  or  "home  shelters,"  is  conducted  by  the 
public  authorities. 

There  is  no  similar  legislation  in  the  United  States,  but  the 
city  of  Seattle  made  a  suggestive  experiment  in  the  care  of  the 
itinerant  worker  during  the  winter  of  1914-1915.  In  that  city 
public  funds  were  advanced  to  maintain  an  itinerant  workers' 
home,  popularly  known  as  "Hotel  Liberty,"  and  arrangements 
were  made  for  work  in  clearing  grounds,  grading  roads,  and 
work  on  the  pipe-line  right-of-way.  For  two  days'  work  on 
one  of  these  jobs  a  man,  registered  at  the  hotel,  was  given  a 
ticket  good  for  twenty-one  meals.  The  work  was  rotated  so 
as  to  give  all  a  chance  to  earn  their  board.  The  hotel  was  ably 
managed  and  more  than  repaid  expenses.  The  Seattle  Cham- 
ber of  Commerce  recommended  that  the  institution  be  made 
permanent,  and  it  has  been  suggested  that  a  chain  of  similar 
hotels  for  itinerant  workers  might  be  established  along  the 
coast. 

(2}  Adjustment  of  Regular  Work 

It  is  fast  becoming  recognized,  however,  that  to  wait  until 
the  emergency  has  overtaken  the  community  before  the  move- 
ment to  provide  public  work  is  set  on  foot  is  wasteful  and 
productive  of  unnecessary  hardship.  Public  officials  are 
therefore  more  and  more  turning  their  attention  to  prepar- 
ing in  ordinary  times  for  the  period  of  stress  which  experi- 
ence has  shown  is  likely  to  follow  in  a  few  months  or  a  few 
years. 

One  of  the  earliest  American  experiments  in  this  direction 
grew  out  of  an  attempt  to  meet  a  specific  emergency.  In  the 
winter  of  1910-1911  the  city  of  Duluth,  Minn.,  confronted 
by  an  unusual  number  of  seasonal  workers  turned  adrift  by 
the  closing  of  transportation  on  the  Great  Lakes,  decided  to 


J5Edw.  7,  C.  i8,Sec.  I  (5). 


3i6       PRINCIPLES  OF  LABOR  LEGISLATION 

anticipate  its  need  and  cut  through  a  wall  of  rock  which 
blocked  the  chief  thoroughfare.  Drilling  and  blasting  were 
done  by  regular  city  employees,  but  preparation  of  the  rock 
for  the  crusher  was  assigned  to  the  unemployed,  who  were 
given  an  average  of  three  days'  work  each.  Applicants  were 
hired  and  retained  only  if  they  were  fit  and  willing  to  work, 
and  wages  were  set  at  $1.20  a  day,  a  little  less  than  the  cur- 
rent rate,  in  order  not  to  attract  those  who  could  find  employ- 
ment elsewhere.  Payment  in  meals,  clothing,  employment 
agency  fees,  or  railroad  fare  was  given  by  the  associated 
charities,  which  referred  the  men  to  the  work  and  was  reim- 
bursed by  the  city.1  The  plan  worked  so  successfully  that 
it  was  followed  in  subsequent  years,  and  in  addition  the  city 
has  shifted  much  of  its  sewer  building  to  the  winter  season 
to  assist  in  equalizing  the  amount  of  employment. 

Such  foresighted  arrangement  of  public  work  is  capable  of 
considerable  extension,  and  may  be  efficaciously  used  to 
counteract  cyclical  as  well  as  seasonal  fluctuations.  The  Eng- 
lish statistician  Bowley  estimates  that  if  in  the  United  King- 
dom a  fund  were  set  aside  for  public  work  to  be  pushed  ahead 
in  times  of  depression,  an  average  of  $20,000,000  yearly,  or 
only  3  per  cent,  of  the  annual  appropriation  for  public  works 
and  services,  would  be  sufficient  to  balance  the  wage  loss  from 
commercial  depression.2  If  his  suggestion  were  generally  ac- 
cepted, in  each  community  or  country  a  program  of  the 
amount  of  public  work  contemplated  for  several  years  in  ad- 
vance would  be  laid  out  and  then  carefully  planned  to  be 
executed  in  the  lean  years.  Thus  public  work,  instead  of 
declining  and  thereby  accentuating  the  depression,  as  is  now 
often  the  case,  would  exert  a  strong  influence  toward  stabil- 
ity. European  experience  shows  that  it  is  essential  to  the 
success  of  such  a  program  that  the  work  be  done  in  the  or- 
dinary way,  the  workers  being  employed  at  the  standard 
wage  and  under  the  usual  working  conditions  and  hired  on 
the  basis  of  efficiency,  not  merely  because  they  happen  to  be 
unemployed. 


*W.  M.  Leiserson,  "The  Duluth  Rock  Pile,"  The  Survey,  September 
20;  1913,  PP..  729-73 1- 

Great  Britain,  Royal  Commission  on  the  Poor  Laws,  Minority  Report. 
1909,  p.  1195- 


UNEMPLOYMENT     .  31? 

Americans  seem  particularly  unwilling  to  prepare  in  ad- 
vance for  periods  of  industrial  depression.  They  appear  to 
think  of  the  unemployment  problem  and  to  take  action  on  it 
only  in  a  crisis.  Yet  within  the  last  few  years  the  number  of 
American  cities  acting  upon  this  principle  has  steadily  grown. 
Several  progressive  communities  have  made  definite  plans  to 
reserve  work  on  unimproved  parks,  sewers,  and  streets  for 
future  dull  periods.  Several,  also,  without  planning  definite 
undertakings,  have  issued  bonds  or  established  contingent 
funds  to  provide  the  resources  when  needed.  In  Alameda, 
Calif  M  a  special  annual  tax  of  i  cent  on  each  $100  of  taxable 
property  was  established  in  1915  to  provide  a  relief  fund  for 
hiring  on  public  work  "unemployed  or  indigent  residents." 

An  interesting  development  in  this  direction  was  the  Idaho 
law  of  1915,  which,  probably  for  the  first  time  in  the  history  of 
the  country,  recognized  the  "right  to  work."  Every  United 
States  citizen  who  had  been  a  resident  of  the  state  for  six 
months,  and  who  did  not  possess  more  than  $1,000  worth  of 
property,  was  guaranteed  sixty  days'  emergency  employment 
on  the  highways  or  other  public  work  yearly.  But  before 
being  put  into  operation  to  any  large  extent  the  law  was 
declared  unconstitutional  on  technical  grounds  involving  the 
method  of  appropriating  funds  and  not  the  general  principle.1 
It  has  not  been  reenacted. 

Pennsylvania,  in  1917,  was  the  first  state  to  establish  a 
permanent  fund  to  be  used  for  public  work  in  slack  seasons.2 
The  machinery  for  administering  the  fund  was  set  up,  and 
$40,000  appropriated.  In  1919  an  opinion  by  the  state 
attorney-general,  to  the  effect  that  the  appropriation  did  not 
lapse  at  the  end  of  the  regular  appropriation  period,  facilitated 
its  operation. 

During  the  brief  period  of  unusual  unemployment  in  the 
winter  of  1918-1919  a  very  general  resort  to  the  remedy  of 
public  work  was  noticeable.  A  large  amount  was  readily 
available,  since  all  but  the  most  necessary  projects  had  been 
postponed  during  the  war.  The  federal  Department  of  Labor 
listed  6,285  pieces  of  work  to  cost  $1,700,000,000.  In  Ohio 
and  New  York  the  governors  called  special  conferences  of 

1  Epperson  v.  Howell,  28  Idaho  338,  154  Pac.  621  (1916). 

2  Pennsylvania,  Laws  1917,  No.  411. 


318       PRINCIPLES  OF  LABOR  LEGISLATION 

state  and  city  officials  with  a  view  to  pushing  public  works. 
It  is  difficult  to  learn  the  exact  effect  of  these  and  of  similar 
action  in  a  number  of  cities,  but  in  the  opinion  of  the  special 
employment  assistant  to  the  Secretary  of  War  such  activity 
was  the  main  cause  of  the  decline  in  unemployment  which 
began  to  be  noticeable  by  the  spring  of  1919. 

As  the  use  of  public  work  as  a  means  of  relieving  unemploy- 
ment has  spread,  city  officials  have  increasingly  felt  the  ham- 
pering effect  of  charter  limitations  on  the  expenditure  of 
money.  Many  makeshift  devices  have  been  adopted  for  de- 
feating these  restrictions,  such  as  raising  money  by  public 
subscription,  borrowing  without  interest,  or  transfer  of  funds 
between  departments,  and  in  some  cases  business  men  have 
had  to  furnish  bonds  to  save  the  city  officials  from  liability. 
Consequently  the  conviction  has  been  growing  that  budgetary 
methods  and,  if  need  be,  city  charters  must  be  modified  to 
permit  greater  freedom  in  the  use  of  money  for  these  under- 
takings. 

In  Great  Britain  the  use  of  public  work  on  a  national 
scale  as  an  equalizing  reservoir  for  the  labor  market  is  partially 
authorized  by  the  development  and  road  improvement  funds 
act  of  1909.*  This  law  sets  aside  sums  of  money  which  may 
be  advanced  either  as  grants  or  as  loans  to  associations  not 
organized  for  profit,  for  the  purpose  of  aiding  and  developing 
agriculture  and  rural  industries,  forestry,  land  reclamation 
and  drainage,  rural  transportation,  harbors,  inland  naviga- 
tion and  fisheries.  The  act  was  not  passed  primarily  as  an 
unemployment  measure,  but  contains  the  provision  that  when 
the  execution  of  any  work  involves  the  employment  of  labor 
on  a  considerable  scale  the  commissioners  must  take  into 
consideration  "the  general  state  and  prospects  of  employ- 
ment." Under  this  clause  a  certain  amount  of  influence  can 
be  exerted  toward  the  timely  initiation  of  public  improvements, 
but  its  scope  is  usually  overestimated.2  In  France  and  Ger- 
many the  policy  of  pushing  public  work  in  slack  seasons  has 
had  a  considerable  development  under  municipal  control. 

1 9  Edw.  7,  C.  47. 

2  A.  D.  Hall,  "The  Development  Act  and  Unemployment,"  National 
Conference  on  the  Prevention  of  Destitution  (Great  Britain),  Report  of 
the  Proceedings  of  the  Unemployment  Section,  1911,  p.  245. 


UNEMPLOYMENT  319 

The  principle  under  discussion  has  taken  firm  hold  among 
those  interested  in  combating  involuntary  idleness,  and  in 
1913,  as  the  result  of  careful  studies  in  many  countries,  the 
following  recommendations  were  laid  before  the  International 
Conference  on  Unemployment:  (i)  That  public  works  be 
distributed,  as  far  as  possible,  in  such  a  way  that  they  may 
be  undertaken  in  dull  seasons  or  during  industrial  depression; 
(2)  that  budget  laws  be  revised  to  facilitate  the  accumulation 
of  reserve  funds  for  this  purpose;  (3)  that  permanent  insti- 
tutions be  created  to  study  the  symptoms  of  depression  in 
order  to  advise  the  authorities  when  to  initiate  the  reserved 
work;  (4)  that  such  work  as  land  reclamation  and  improve- 
ment of  the  means  of  communication,  which  would  tend  to 
increase  the  permanent  demand  for  labor,  be  especially  under- 
taken; and  (5)  that  in  order  to  secure  the  fullest  benefits  from 
the  reserved  work,  contracts  should  be  awarded  not  as  units, 
but  separately  for  each  trade.  The  first  International  Labor 
Conference,  meeting  at  Washington  in  October,  1919,  recom- 
mended to  member  countries  that  they  should  ' '  coordinate  the 
execution  of  all  work  undertaken  under  public  authority,  with 
a  view  to  reserving  such  work  as  far  as  practicable  for  periods 
of  unemployment  and  for  districts  most  affected  by  it." 


4.  REGULARIZATION  OF  INDUSTRY 

While  methods  of  utilizing  public  work  to  counteract  the 
fluctuations  of  employment  in  private  industry  have  for  some 
time  occupied  the  attention  of  lawmakers,  recently  the  de- 
mand has  found  legislative  expression  that  private  industry 
turn  some  attention  to  solving  the  problem  at  its  source  by 
reducing,  if  not  eliminating,  these  fluctuations.  Regulariza- 
tion  of  industry  is  demanded  by  the  interests  of  employer  and 
employee  alike.  The  employer,  with  an  expensive  plant,  re- 
quires steady  production  to  keep  down  overhead  expenses 
and  to  secure  the  best  returns  from  the  business;  the  em- 
ployee needs  steady  work  to  prevent  destitution  and  conse- 
quent demoralization.  It  is  not  surprising,  therefore,  to  find 
governments  exerting  pressure  to  the  end  that,  as  far  as  pos- 
sible, every  job  be  made  a  steady  job.  Society  has  in  the 


320       PRINCIPLES  OF  LABOR  LEGISLATION 

past  attempted  to  adjust  itself  to  the  tips  and  downs  of 
business;  it  is  now  beginning  to  insist  that  business  avoid 
ups  and  downs. 

Methods  of  regularization  are  as  various  as  the  industries 
concerned,  if  not  as  various  as  the  individual  establishments. 
Many  employers  have  found  it  economical  to  organize  employ- 
ment departments  for  the  purpose  of  studying  and  remedying 
fluctuations  in  the  size  of  the  working  force,  and  in  Boston, 
New  York,  and  Philadelphia  associations  of  employment  man- 
agers were  formed  as  early  as  1912  to  discuss  their  common 
problems.  Through  these  departments  considerable  hardship 
has  been  avoided  by  reducing  excessive  "turnover"  of  labor, 
by  transferring  workers  from  slack  departments  to  busy  ones 
instead  of  discharging  them,  and  by  employing  the  whole 
force  on  part  time  rather  than  part  of  the  force  on  full  time. 
Careful  planning  of  output  for  months  or  even  for  a  year 
ahead,  the  development  of  supplementary  lines  such  as  tennis 
shoes  and  rubber  tires  in  a  rubber-shoe  factory,  and  special 
measures  to  overcome  weather  conditions,  such  as  the  intro- 
duction of  artificial  drying  in  the  brick  industry,  have  also 
been  found  helpful.  Through  cooperation  with  other  em- 
ployers for  the  maintenance  of  a  common  reserve  of  labor  in- 
stead of  a  separate  supply  for  each  firm,  the  intermittent  char- 
acter of  such  occupations  as  the  building  trades  and  dock 
work  has  been  effectually  reduced. 

Employers,  however,  are  frequently  no  more  far-sighted 
than  are  other  persons  in  the  community,  and  may  neglect 
what  is  obviously  to  their  own  and  other  persons'  economic 
advantage  if  it  requires  much  additional  exertion  or  fore- 
thought. Hence  arises  the  need  for  governmental  stimulus 
toward  regularization  which  is  found  in  some  of  the  newer 
legislation  on  unemployment. 

Perhaps  the  most  striking  illustration  of  what  can  be  done 
to  "decasualize"  casual  employment  is  the  system  now  in 
operation  on  the  Liverpool  docks,  where  thousands  of  men 
used  to  eke  out  a  precarious  and  irregular  longshoreman's 
livelihood.  Each  ship  company  sought  to  attract  enough  men 
every  day  to  meet  the  need  on  the  busiest  days,  and  it  has 
even  been  alleged  that  some  employers  deliberately  parceled 
out  the  work  so  that  many  more  than  the  usual  number  em- 


UNEMPLOYMENT  321 

ployed  were  encouraged  to  be  on  hand  and  available  when 
wanted.1 

To  counteract  the  demoralizing  results  of  this  chronic 
underemployment,  what  is  known  as  the  Liverpool  dock 
scheme  was  inaugurated  by  the  British  Board  of  Trade  in 
July,  1912,  under  authority  of  the  unemployment  insurance 
part  of  the  national  insurance  act.  In  the  first  year  of  its 
operation  sixty-eight  employers  became  parties  to  the  plan, 
and  31,000  dockers  were  registered.2  A  metal  tally  was 
issued  to  each  man;  only  men  holding  tallies  are  employed, 
and  new  tallies  can  be  issued  only  with  the  approval  of  the 
joint  committees  of  workmen  and  employers  which  are  assist- 
ing to  administer  the  scheme.  Workmen  who  fail  to  be  hired 
at  the  employers'  regular  stands  go  to  one  of  fourteen  "sur- 
plus stands,"  which  are  in  communication  by  telephone  with 
one  another  and  with  the  six  sectional  clearing  houses  that 
have  been  established  in  connection  with  the  government 
labor  exchange.  The  system  makes  it  possible  to  do  the 
same  work  with  fewer  men,  but  these  are  employed  much  more 
regularly.  The  adjustment  is  said  to  have  caused  temporary 
hardship  for  some  workmen,  but  it  is  hoped  that  in  time  each 
employer  will  keep  the  nucleus  of  a  force  on  regular  wages 
and  rely  for  extra  raea^pn  a  fluid  reserve  to  be  maintained 
jointly  by  all  the  employers-  of  the_3$>r1?  The  advantages  of 
maintaining  one  reserve  for  the  industry  as  a  whole  instead 
of  separately  for  each  employer,  are  obvious.  Somewhat 
similar  schemes  are  in  force  among  the  dockers  of  Goole  and 
of  Sunderland,  the  cloth  porters  of  Manchester,  and  the  ship- 
repairers  of  Cardiff  and  Swansea.4  Under  the  war-time  ex- 
tension of  the  United  States  Employment  Service,  a  similar 
scheme  was  started  for  New  York  longshoremen,  but  it  had 
to  be  abandoned  when  the  service  was  curtailed. 

Headway  can  be  made  to  some  extent  against  seasonal 
fluctuations  also,  under  the  proper  encouragement  of  an  effi- 


1  R.  Williams,  The  Liverpool  Docks  Problem,  1912,  pp.  10-12. 

2  Beveridge  and  Rey,  "Labour  Exchanges,"  Quarterly  Bulletin  on  Un- 
employment, July-September,  1913,  p.  789. 

3  See  R.  Williams,  First  Year's  Working  of  the  Liverpool  Dock  Scheme, 
1914. 

4  Beveridge  and  Rey,  Quarterly  Bulletin  on  Unemployment,  July-Sep- 
tember, 1913,  pp.  795-799- 

21 


322       PRINCIPLES  OF  LABOR  LEGISLATION 

cient  labor  exchange  system.  During  the  winter,  for  instance, 
it  has  been  suggested  that  building  laborers  could  be  assisted 
to  take  up  ice-cutting  or  logging,  or  to  secure  some  of  the 
less  skilled  work  in  shoe,  textile,  or  other  factories  which  are 
busier  at  that  season.  Through  the  London  employment  ex- 
changes women's  work  in  ready-made  tailoring,  which  is 
busiest  in  the  spring  and  fall,  has  been  dovetailed  with  hand 
ironing  in  laundries,  which  is  heaviest  during  the  summer. 

The  Illinois  and  Pennsylvania  laws  of  1915  establishing 
state  employment  bureaus  instruct  the  administrative  au- 
thorities to  take  steps  toward  the  regularization  of  employ- 
ment, both  public  and  private.  Interesting  possibilities  are 
suggested  by  these  measures,  but  in  actual  practice  little,  if 
anything,  has  been  done  under  them.  A  more  definite  induce- 
ment to  the  regularization  of  industry  on  a  comprehensive 
scale  is  offered  through  the  establishment  of  unemployment 
insurance.1 


1  See  "Unemployment  Insurance,"  p.  441. 


CHAPTER  VII 
SAFETY  AND  HEALTH 

+  Prominent  among  the  problems  which  the  industrial  revo- 
lution brought  in  its  wake  is  that  of  maintaining  safety  and 
health  in  work-places.  As  long  as  industry  was  chiefly 
agricultural,  or  carried  on  about  -the  family  hearth,  with  tools 
relatively  few  and  simple,  the  individual  laborer  might  con- 
trol the  physical  conditions  under  which  he  worked.  But  the 
drift  during  the  late  eighteenth  and  early  nineteenth  cen- 
turies from  farming  to  manufacturing,  and  from  homestead 
to  factory  methods,  placed  a  growing  proportion  of  wage- 
earners  in  a  new  environment.  They  toiled  now  upon  prem- 
ises controlled  not  by  themselves,  but  by  another — the  em- 
ployer. Instead  of  working  in  isolation  or  in  small  groups, 
hundreds  were  collected  under  one  roof  where  the  error  or 
illness  of  one  might  affect  all  his  neighbors.  New  machinery, 
new  chemical  processes,  new  forces  such  as  electricity  and  com- 
pressed air,  have  been  ceaselessly  developed,  each  involving 
its  own  special  dangers.  Upon  all  production,  speed,  the  rul- 
ing spirit  of  a  machine  age,  has  imposed  its  exactions.  Nor 
have  subjective  factors  been  without  their  influence.  Igno- 
rance, recklessness,  and  inertia,  manifested  now  by  the  leaders 
of  technical  research,  now  by  the  masters  of  industry,  and 
not  infrequently  by  the  workers  themselves,  have  contrib- 
uted to  create  a  situation  in  which  the  statistics  of  industrial 
accident  and  disease  are  often  justly  compared  with  those 
of  the  world's  great  battles. 

Conservation  of  the  life,  health,  and  energy  of  our  millions 
of  wage-earners  is  not  an  individual  question.  It  is  a  social 
question,  demanding  social  action.  This  does  not  mean  that 
private  or  voluntary  efforts  of  the  workmen,  or  of  industrial 
managers,  or  of  physicians,  should  be  in  any  way  discouraged. 
On  the  contrary,  such  voluntary  efforts  should  be  vastly  in- 


324       PRINCIPLES  OF  LABOR  LEGISLATION 

creased.  But  the  prevention  of  industrial  accidents  and  dis- 
eases is  too  great  an  undertaking  to  be  left  entirely  to  individ- 
ual action. 

Though  more  than  half  the  waking  hours  of  the  ordinary 
wage-earner  are  spent  at  his  place  of  employment,  it  is  one 
of  the  fundamental  disharmonies  of  present-day  industry  that 
he  has  little  or  no  control  over  the  conditions  which  there 
surround  him,  and  which  profoundly  affect  his  well-being 
and  even  his  life.  Individual  complaint  frequently  leads  to 
loss  of  employment  rather  than  to  improvement  of  conditions. 
As  a  member  of  a  labor  union  the  worker's  power  is  potentially 
increased,  but  is  often,  for  various  reasons,  not  effectively 
exerted.  Regulation  of  the  physical  conditions  of  employ- 
ment cannot,  on  the  other  hand,  be  safely  entrusted  to  the 
individual  employer,  whose  principal  business,  under  com- 
petitive conditions,  is  to  secure  profits.  While  many  em- 
ployers are  exercising  the  utmost  consideration  for  their 
work-people  out  of  motives  of  humanity,  and  many  more  are 
doing  so  on  grounds  of  efficiency,  such  motives  cannot  be  said 
to  have  developed  into  a  controlling  principle  of  industrial 
life.  Nor  can  the  industrial  accident  and  disease  problem 
be  left  to  medical  treatment  alone,  for  prevention  and  not 
after-care  is  the  solution.  Not  only  on  account  of  the  mag- 
nitude of  the  problem,  but  also  because  of  its  nature,  the  pro- 
tection of  the  wage-earner  from  dangerous  conditions  of  em- 
ployment is  a  proper  function  of  government. 

Frequently  it  happens  that  without  the  aid  of  uniform  legal 
regulations  to  force  the  recalcitrant  minority  into  line,  even 
a  vast  majority  of  the  manufacturers  in  an  industry  are  power- 
less to  bring  about  reforms  which  they  freely  admit  are  de- 
sirable. A  striking  example  of  this  was  revealed  by  the  three- 
year  campaign  which  culminated  successfully  in  the  poisonous 
phosphorus  prohibition  act.  Match  manufacturers  represent- 
ing 95  per  cent,  of  the  total  product  testified  before  Congress 
that  they  could  not  substitute  a  harmless  compound  for  the 
slightly  cheaper  poison  without  a  uniform  law  compelling  all 
employers  in  that  industry  to  abandon  the  poison.  All  of 
the  other  match  manufacturers,  representing  the  remaining 
5  per  cent,  of  the  product,  stood  out  stoutly  to  the  last,  even 
^  declaring  that  they  would  close  their  factories  before  they 


SAFETY  AND  HEALTH  325 

would  submit  to  this  sanitary  measure,  already  in  compulsory 
operation  in  practically  all  civilized  countries  of  the  world. 
It  required  labor  legislation  to  end  the  use  of  this  unnecessary 
deadly  poison  before  "phossy  jaw,"  the  most  loathsome  of 
all  industrial  diseases,  could  be  abolished. 

Legislative  activities  for  the  control  of  industrial  accidents 
and  occupational  diseases  have  developed  in  all  important 
countries  along  four  main  lines,  namely,  (i)  reporting,  (2) 
prohibition,  (3)  regulation,  and  (4)  compensation  or  insur- 
ance. All  four  lines  of  activity  are  closely  interrelated,  and 
depend  for  success  largely  upon  one  another.  Reporting  of 
accidents  and  diseases  is  purposeless  unless  it  leads  to  pro- 
hibition or  regulation  of  the  sources  of  danger,  and  is  likely 
to  be  incomplete  if  not  made  part  of  a  proper  system  of  com- 
pensation administration.  Effort  for  prohibition  and  regula- 
tion gropes  in  the  dark  without  the  light  of  experience  made 
available  through  thorough  reporting,  and  is  apt  to  be  feeble 
unless  stimulated  by  the  cooperative  financial  pressure  exerted 
by  compensation.  Compensation,  in  turn,  is  deprived,  by  lack 
of  careful  reports,  of  the  necessary  actuarial  basis  for  success- 
ful operation,  and  accomplishes  but  the  minor  part  of  its  pur- 
pose if  the  payment  of  benefits  fails  to  lead  to  systematic  efforts 
at  prohibition  or  regulation .  Upon  the  combined  development 
of  all  four  devices  depends  the  efficacy  of  the  modern  legisla- 
tive movement  for  the  protection  of  the  industrial  worker's 
life,  limb,  and  health.  Leaving  the  fourth  step,  compensa- 
tion, for  treatment  under  "Social  Insurance,"  this  chapter 
will  concern  itself  with  the  first  three  methods  of  attack. 


i.  REPORTING 

A. 

While  in  many  matters  of  social  interest  the  gathering  of 
statistics  is  well  developed,  in  others  only  the  beginnings  have 
been  made.  In  industry,  for  example,  we  know  much  about 
the  value  of  the  raw  materials  and  of  the  product,  but  com- 
paratively little  about  the  accidents  and  diseases  which  are 
entailed  upon  the  workers  in  the  creation  of  that  product. 
Yet  there  can  be  no  more  important  link  in  the  whole  chain 
of  social  effort  for  the  prevention  of  industrial  death  and 
disability  than  the  securing  of  accurate  data  as  to  the  nature 


326       PRINCIPLES  OF  LABOR  LEGISLATION 

of  the  hazards,  their  extent,  and  the  particular  industries 
and  establishments  in  which  they  are  most  rife.  The  acquisi- 
tion of  this  knowledge  is  an  integral  part  of  the  modern 
movement  for  the  protection  of  life  and  health.  It  reveals 
the  "sore  spots"  of  industry.  Not  only  does  it  point  out 
conditions  introduced  by  changing  methods  in  manufacture 
and  elsewhere  which  call  for  correction,  but  after  corrective 
legislation  has  been  secured  it  acts  as  a  valuable  guide  to  and 
index  of  the  efficacy  of  the  administrative  authorities. 

Such  information,  however,  until  comparatively  recent 
years,  had  been  intelligently  sought,  if  at  all,  only  incidentally 
by  special  commissions  which  investigated  some  more  press- 
ing phase  of  industrial  abuse,  submitted  their  reports,  and 
disbanded.  The  idea  of  a  permanent  census  on  the  matter 
is  of  tardy  development. 


d)  Accidents 

It  was  not  until  1886  that  any  American  state  placed  an 
accident-reporting  law  upon  its  statute  books,  and  again,  as 
in  many  other  matters  of  labor  legislation,  it  was  Massa- 
chusetts which  took  the  lead.  By  the  act  of  June  i,  1886, 
manufacturing  and  mercantile  corporations  were  required  to 
report  to  the  chief  of  the  district  police,  the  organization  which 
then  had  charge  of  factory  inspection,  accidents  occurring  in 
their  establishments  and  causing  death  or  four  or  more  days' 
disability.  A  penalty  was  provided  for  failure  to  comply. 
Four  years  later  the  law  was  extended  to  apply  to  all  pro- 
prietors of  the  designated  classes  of  establishments,  instead 
of  only  to  corporations.  Similar  statutes  were  enacted  in 
Ohio  in  1888,  Missouri  in  1891,  Rhode  Island  in  1896,  and 
elsewhere  during  the  same  decade. 

These  early  laws  did  not  bring  satisfactory  results.  Fees 
have  seldom  been  offered  for  accident  reports,  and  employers 
have  appeared  reluctant  to  give  their  establishments  an  un- 
enviable reputation  for  danger.  Official  enforcement,  too,  has 
been  lax.  Prosecutions  for  failure  to  report  have  been  rare, 
and  the  imposition  of  the  stated  penalties  still  rarer.  "In 
none  of  them,"  said  a  federal  investigator  in  1897,  of  eight 
states  which  then  had  reporting  laws,  "is  there  any  pretense 


SAFETY  AND  HEALTH  327 

that  anything  like  complete  returns  of  accidents  are  ob- 
tained." l 

Since  that  time,  in  spite  of  its  shortcomings  and  inade- 
quacies, so  useful  has  reporting  proven  itself  as  a  guide  for 
inspection,  safeguarding  and  advanced  legislation,  that  it  has 
steadily  spread  not  only  to  new  states,  but  to  new  branches  of 
'industry.2  The  kind  of  accidents  to  be  reported  varies  great- 
ly, ranging  from  all  injuries  in  the  more  advanced  states  to 
only  those  which  result  in  death  or  in  the  incapacity  of  the 
injured  workman  for  a  stated  length  of  time,  as  for  two  days, 
one  week,  and  in  rare  cases  for  two  weeks.  The  time  of  re- 
porting is  variously  fixed  at  "immediately,"  twenty-four  or 
forty-eight  hours,  two  weeks,  once  a  month,  and,  in  Louisiana, 
"semiannually."  Accidents  occurring  to  employees  under 
the  workmen's  compensation  acts  must  usually  be  reported 
immediately.  Notification  by  mail  on  a  blank  provided  by 
the  proper  state  authority  is  in  most  cases  sufficient,  but  in 
connection  with  fatal  railway  and  street-car  accidents  a  tele- 
phone or  telegraph  report,  followed  by  a  detailed  written 
statement,  is  often  obligatory.  Reports  are  usually  made  to 
the  state  department  of  factory  inspection,  and  a  wide  range  of 
questions  must  be  answered.  A  standard  schedule  adopted 
for  use  in  important  industrial  states  containing  about  half 
the  manufacturing  wage-earners  of  the  country  is  divided 
into  sections  on  (i)  employer,  place,  and  time,  (2)  injured 
person,  (3)  cause,  and  (4)  nature  and  extent  of  injury,  and 
each  section  asks  a  number  of  questions  found  by  long  ex- 
perience and  careful  study  to  be  most  successful  in  eliciting 
the  desired  information.3 

While  much  progress  has  been  made  since  the  beginning  of 

1  United  States  Bureau  of  Labor,  Bulletin  No.  12,  September,  1897, 

P-  565- 

2  A  standard  bill  for  industrial  accident  reports,  drafted  by  the  Ameri- 
can Association  for  Labor  Legislation  in  1912,  has  been  passed  in  several 
states.     See  United  States  Bureau  of  Labor  Statistics,  Bulletin  No.  757, 
1915,  "Industrial  Accident  Statistics,"  Frederick  L.  Hoffman,  p.  151. 

3  This  schedule  was  prepared  by  the  American  Association  for  Labor 
Legislation,  and  has  been  indorsed  by  the  American  Statistical  Associa- 
tion, the  United  States  Bureau  of  Labor  Statistics,  the  Workmen's  Com- 
pensation Service  Bureau,  and  the  National  Safety  Council.     By  October 
I,  1915,  it  had  been  adopted  by  the  labor  departments  of  California,  Iowa, 
Massachusetts,  Minnesota,  Nevada,  New  Hampshire,  New  York,  Penn- 
sylvania, and  Washington. 


328       PRINCIPLES  OF  LABOR  LEGISLATION 

the  reporting  movement  in  1886,  much  remains  to  be  done  in 
the  direction  of  extending  and  of  introducing  uniformity  into 
the  system.  In  a  few  states,  and  for  a  limited  number  of 
industries,  good  work  is  being  done,1  but  the  failure  to  cover 
all  dangerous  occupations  and  the  wide  differences  in  the 
meaning  of  reportable  accident  still  render  the  data  confus- 
ing and  incomparable  as  between  states.  For  a  comprehen- 
sive view  of  the  situation  in  all  industries  and  throughout  the 
country  dependence  must  for  the  present  be  placed  on  the  more 
or  less  scholarly  estimates  which  appear  from  time  to  time. 

What  is  perhaps  the  most  accurate  as  well  as  one  of  the 
most  recent  of  these  studies  is  based  upon  insurance  experi- 
ence with  nearly  38,000,000  lives,  and  places  the  number  of 
fatal  industrial  accidents  for  1913  at  25,000,  and  the  number 
of  injuries  involving  disability  of  more  than  four  weeks  at 
7oo,ooo.2  The  detailed  figures  are  shown  in  the  chart  on 
the  following  page. 

Eight  industries,  it  appears,  are  more  hazardous  than  ser- 
vice in  the  United  States  Army,  and  of  these  mining,  with 
metal  mining  predominating,  is  the  most  dangerous.  Rail- 
roading, electrical  work,  and  quarrying  are  high  on  the  list, 
while  general  manufacturing,  including  ordinary  factory 
work,  is  apparently  safer  than  agriculture,  in  which  the  in- 
troduction of  power-driven  machinery  has  of  late  been  add- 
ing peculiar  new  hazards  to  those  previously  involved  in  the 
handling  of  live  animals.  What  these  thousands  of  acci- 
dents, occurring  in  every  industrial  state  and  country,  mean 
in  terms  of  suffering,  interrupted  wage-earning,  lowering  of 
efficiency  and  deterioration  of  standard  of  living,  our  com- 
pensation laws  are  at  last  beginning  to  reveal  with  something 
like  scientific  accuracy. 

(2)  Occupational  Diseases 

Hardly  less  serious,  if  any,  than  the  misery  and  waste 
caused  by  industrial  accident  is  that  entailed  through  the  more 
insidious  danger  of  occupational  disease. 

1  Especially  excellent  is  the  reporting  work  done  by  several  industrial 
accident  or  workmen's  compensation  boards,  notably  those  of  California, 
Massachusetts,  New  York,  Ohio,  and  Wisconsin. 

2  United  States  Bureau  of  Labor  Statistics,  Bulletin  No.  157,  p.  6. 


*c 

e-f 

s2, 
& 


|| 

5® 


330       PRINCIPLES  OF  LABOR  LEGISLATION 

Occupational  disease  has  been  defined  as  "morbid  results  of 
occupational  activity  traceable  to  specific  causes  or  labor  con- 
ditions, and  followed  by  more  or  less  extended  incapacity  for 
work."  l  American  interest  in  the  subject  is  mainly  a  product 
of  the  last  few  years.  In  1910  it  was  possible  to  record  only 
the  appointment  of  the  Illinois  Occupational  Disease  Com- 
mission, the  completion  of  an  investigation  of  phosphorus 
poisoning  in  the  match  industry,  and  the  holding  of  the  First 
National  Conference  on  Industrial  Diseases,  an  expert  com- 
mittee of  which  drew  up  a  memorial  on  the  subject  for  presen- 
tation to  the  President  of  the  United  States.  Practically 
all  of  the  many  interesting  American  investigations  and  re- 
ports on  this  subject  have  been  made  since  that  time. 

The  principal  industrial  health  risks,  as  far  as  we  now  know 
them,  may  be  conveniently  classified  according  to  their  nature 
as  follows:  (i)  dangerous  gases,  acids,  and  dusts  (poisonous 
and  non-poisonous);  (2)  harmful  bacteria  and  micro-organ- 
isms; (3)  compressed  or  rarefied  atmospheres;  (4)  improper 
lighting;  (5)  extremes  of  temperature  and  humidity;  (6)  ex- 
cessive strain.  Almost  every  calling  involves  danger  from 
one  or  more  of  these. 

Considering  merely  the  industrial  poisons,  "those  raw  ma- 
terials and  products,  by-products,  and  waste  products  which, 
in  their  extraction,  manufacture,  and  use  in  industrial  proc- 
esses may,  notwithstanding  the  exercise  of  ordinary  pre- 
caution, find  entrance  into  the  body  in  such  quantities  as  to 
endanger  by  their  chemical  action  the  health  of  the  work- 
man employed,"  we  find  already  prepared  a  careful  list  of 
fifty-four,2  one  of  which  alone,  lead,  is  in  daily  use  in  more 
than  150  trades,  causing  "painters'  colic,"  "wrist  drop,"  or 
even  death.  Connected  with  dusty  trades  of  all  sorts,  from 
silk-weaving  to  quarrying,  are  found  non-poisonous  dusts 
which  by  infiltration  and  mechanical  irritation  produce  vari- 
ous occupational  lung  diseases.  Moreover,  the  bacillus  of 
anthrax  may  infect  tanners  and  workers  on  hair  goods,  while 

"Memorial  on  Occupational  Diseases,"  American  Labor  Legislation 
Review,  Vol.  I,  No.  i,  January,  1911,  pp.  125-143. 

United  States  Bureau  of  Labor,  Bulletin  No.  100,  May,  1912,  "List 
of  Industrial  Poisons  and  Other  Substances  Injurious  to  Health 'Found 
in  Industrial  Processes,"  Th.  Sommerfeld  and  R.  Fischer,  pp.  733-759. 


SAFETY  AND  HEALTH  331 

ankylostomiasis,  or  "miners'  hookworm,"  menaces  those  who 
toil  in  warmth  and  moisture  underground.  The  tunnel  and 
caisson  worker  dreads  compressed-air  illness.  Less  easy  to 
trace,  but  perhaps  even  more  widespread,  are  the  obscure 
ailments  which  may  arise  in  any  industry,  from  insufficient 
or  excessive  lighting,  from  extremes  of  heat,  cold,  and  humid- 
ity, or  from  work  too  heavy,  too  persistent,  and  too  intense 
without  adequate  periods  of  rest. 

Incomplete  as  is  our  information  on  the  prevalence  and  seri- 
ousness of  industrial  accidents,  even  more  incomplete  is  it 
with  regard  to  specific  trade  maladies,  some  of  which  are 
now  being  recorded  in  our  hospitals  and  dispensaries.  The 
first  American  law  for  the  compulsory  reporting  of  these 
diseases  was  drafted  by  the  Association  for  Labor  Legislation 
after  investigation  of  similar  legislation  in  England  and  was 
enacted  in  California  in  March,  1911.  Within  five  years,  as 
the  result  of  vigorous  and  sustained  effort,  sixteen  states 
enacted  similar  legislation.1  The  earliest  of  these  laws  called 
for  reports  on  all  cases  of  anthrax,  compressed-air  illness,  and 
poisoning  from  lead,  phosphorus,  arsenic,  mercury,  or  their 
compounds,2  to  which  were  later  added  brass  and  wood  alco- 
hol poisoning.3  The  most  recent  tendency,  however,  is  to 
make  the  laws  include  "any  ailment  or  disease  contracted  as 
a  result  of  the  nature  of  the  patient's  employment,"  4  in  which 
form  they  will  probably  be  productive  of  more  important 
results. 

The  duty  of  reporting  falls  upon  the  physician,  who  may 
be  either  a  general  practitioner  treating  the  case,  or,  in  states 
requiring  a  monthly  medical  examination  of  workers  in. special- 
ly hazardous  trades,  the  physician  making  such  examination. 
A  standard  certificate  has  been  adopted  in  a  majority  of  the 
reporting  states,5  and  requires  the  name  and  address  of  both 

1  California,  Connecticut,  Illinois,  Maine,  Maryland,  Massachusetts, 
Michigan,  Minnesota,  Missouri,  New  Hampshire,  New  Jersey,  New  York, 
Ohio,  Pennsylvania,  Rhode  Island,  and  Wisconsin. 

2  California,  Laws  1911,  C.  485. 

3  Connecticut,  Laws  1913,  C.  14;   New  York,  Laws  1913,  C.  145. 

4  Massachusetts,  Laws  1913,  C.  813,  Sec.  6. 

5  California,  Maine,  Maryland,  Massachusetts,  New  Hampshire,  New 
Jersey,  New  York,  Ohio,  and  Wisconsin.     Like  the  standard  accident 
schedule,  this  certificate  was  drafted  after  careful  study  by  the  Associa- 
tion for  Labor  Legislation. 


332       PRINCIPLES  OF  LABOR  LEGISLATION 

employee  and  employer,  the  nature  of  the  business,  the  diag- 
nosis and  symptoms  of  the  disease,  and  other  pertinent  in- 
formation. In  most  cases  reports  must  be  made  to  the  state 
labor  department,  but  occasionally  they  go  to  the  board  of 
health,  which  transmits  them  to  the  labor  department.  In 
a  very  few  cases  l  a  small  fee  of  50  cents  is  allowed  for  send- 
ing in  notices,  but  even  where  this  is  not  done  it  is  not  felt 
that  any  undue  hardship  has  been  caused  to  the  medical  pro- 
fession by  placing  upon  them  this  added  duty. 

Reliable  statistical  data  for  the  country  as  a  whole  are, 
however,  still  lacking.  Again  we  must  fall  back  on  estimates, 
and  careful  American  authorities  declare,  on  the  basis  of  Ger- 
man experience,  that  numbering  our  gainfully  occupied  popu- 
lation at  33,500,000,  no  fewer  than  284,000,000  days'  ill- 
ness occur  annually,  causing  a  social  and  economic  waste  of 
nearly  $75o,ooo,ooo.2  Of  this  enormous  waste  fully  one- 
quarter,  it  is  computed,  could  be  prevented  by  deliberate 
effort,  largely  in  the  direction  of  greater  care  and  cleanliness 
in  the  nation's  workshops.  Many  unhealthful  conditions  in 
industry,  also,  while  they  may  not  lead  to  actual  absence 
from  work,  are  nevertheless  productive  of  unnecessary  physi- 
cal discomfort  which  reacts  badly  on  the  worker's  health  and 
strength.  The  effects  of  these  daily  minor  drains  upon  in- 
dustrial efficiency  are  necessarily  difficult  to  trace  or  to  meas- 
ure, but  they  must  in  the  aggregate  be  enormous. 

0 

2.  PROHIBITION 

The  method  of  prohibition  for  the  safeguarding  of  indus- 
trial workers  is  usually  resorted  to  only  under  severe  provoca- 
tion. But  at  times  it  appears  to  be  the  only  effective  way  of 
removing  an  intolerable  industrial  hazard,  and  instances  of 
its  use  are  multiplying. 

There  are  two  ways  in  which  the  prohibitive  method  may 
be  applied.  First,  it  may  be  used  to  exclude  from  employ- 
ment those  most  susceptible  to  danger,  whether  children, 
women,  or  certain  classes  of  men.  Second,  it  may  be  used  to 
outlaw  the  substances  or  instruments  which  render  employ- 
ment dangerous. 

» California  and  Connecticut,       *  Mtmorwl  on  Ocwpttiongl  Pw«w«,  ' 


SAFETY  AND  HEALTH 

(i)  Exclusion  of  Persons 

a.  Children.  Provisions  for  the  exclusion  of  persons  from 
industrial  pursuits  have  been  carried  further  with  regard  to 
children  than  with  regard  to  any  other  group  of  wage-earners, 
on  the  general  theory  that  the  child  is  the  special  ward  of  the 
state  and  most  in  need  of  special  measures  of  protection. 
The  dangers  thus  sought  to  be  guarded  against  may  be 
to  the  child's  life,  limb,  health,  or  morals,1  and  the  restric- 
tions which  have  grown  up  are  based  on  considerations  of  age, 
physique,  and  education. 

(a)  Age  Requirements.  The  past  century  has  witnessed  an 
almost  complete  reversal  of  public  opinion  as  to  the  proper 
age  at  which  children  should  become  breadwinners.  With- 
out scruple,  and  even  in  the  belief  that  they  were  acting 
charitably,  the  American  colonists  received  from  England  as 
bound  apprentices  large  numbers  of  orphans  and  children  of 
the  poor,  ten  to  sixteen  years  of  age,  some  even  as  young  as 
seven  years.  Laws  were  passed  to  keep  these  boys  and  girls 
profitably  employed,  partly  for  the  benefit  of  the  community 
and  partly  to  save  them  from  the  dangers  of  idleness.  When 
manufactures  arose  Alexander  Hamilton  approved  of  them  as 
rendering  children  "more  useful  and  .  .  .  more  early  useful 
than  they  would  otherwise  be."  2 

These  colonial  traditions  have  now  gone  down  before  a 
standard  of  working  age  based  on  the  observed  harmful  effects 
of  premature  labor.  In  1848  3  Pennsylvania  forbade  the  em- 
ployment in  textile  establishments  of  children  under  twelve, 
a  standard  which  it  the  following  year  4  raised  to  thirteen. 

Within  the  next  decade  a  twelve-year  limit  was  established 
in  Rhode  Island,5  and  a  ten-year  limit  in  New  Jersey  6  and 
Connecticut; 7  in  all  three  states  the  law  covered  manufact- 
ures, and  in  Connecticut  it  covered  mechanical  establish- 
ments also.  In  none  of  these  states  was  any  proof  of  age 
required,  and  enforcement  was  everywhere  very  lax. 

The  first  state  to  provide  a  special  officer  to  see  that  its 

1  See,  for  instance,  Kansas,  General  Statutes  1909,  Sec.  5095. 

2  Alexander  Hamilton,  Works,  Vol.  Ill,  p.  207. 

3  Pennsylvania,  Laws  1848,  No.  227.         *  Ibid.,  Laws  1849,  No.  415. 

6  Rhode  Island,  Laws  1853,  p.  245.     6  New  Jersey,  Laws  1851,  p.  321. 

7  Connecticut,  Laws  1856,  C.  45. 


334      PRINCIPLES  OF  LABOR  LEGISLATION 

age  restrictions  on  the  employment  of  children  were  obeyed 
was  Massachusetts,  in  its  law  of  1867.*  The  previous  year, 
following  a  report  by  a  commission  on  hours  of  labor,  a  law 
had  been  passed  forbidding  the  employment  of  children  under 
ten  years  of  age  in  manufacturing  establishments.  The  gov- 
ernor at  his  discretion  might  instruct  the  state  constable  and 
his  deputies  to  enforce  the  law.  It  seems,  however,  that  the 
governor  did  not  see  fit  to  give  such  instructions,  and  in  1867, 
when  the  act  was  amended  to  cover  mechanical  establish- 
ments as  well  as  manufacturing,  it  was  made  a  duty  of  the 
state  constable  to  d,etail  a  deputy  to  enforce  all  laws  regulating 
the  employment  of  children. 

About  this  same  period  the  national  labor  organizations 
became  active  in  demanding  the  legal  prohibition  of  child 
labor  below  a  minimum  age  limit.  In  1876  laws  against  the 
employment  of  children  under  fourteen  years  of  age  were 
advocated  by  the  Working  Men's  Party  at  a  congress  in 
Philadelphia,  and  about  the  same  time  the  Knights  of  Labor 
took  a  stand  for  the  prohibition  by  law  of  their  employment 
under  fifteen  years  of  age  in  workshops,  mines,  and  factories. 
The  American  Federation  of  Labor,  organized  later,  indorsed 
the  same  standard.  Since  then  many  influential  societies  and 
women's  clubs,  as  well  as  labor  organizations,  have  supported 
and  worked  for  the  legal  prohibition  of  child  labor.  In  1904  the 
National  Child  Labor  Committee  was  formed  to  act  as  a  clear- 
ing house  for  information  on  child  labor,  to  investigate  condi- 
tions, to  educate  public  opinion,  and  to  promote  legislation. 

The  result  of  the  work  of  this  national  committee  and  the 
various  agencies  that  have  cooperated  with  it  is  a  large  body 
of  legislation  restricting  the  employment  of  children.  All 
states  now  forbid  the  employment  of  children  in  one  or  more 
kinds  of  work  until  they  have  passed  a  fixed  age  limit.  The 
fourteen-year  minimum  age  limit  was  by  1920  established  for 
general  factory  work  in  all  except  five  states.2  In  most  states 
documentary  proof  of  a  child's  age  is  demanded,  and  working 

1  Massachusetts,  Laws  1867,  C.  285. 

2  In  1920  New  Mexico,  Ut§h,  and  Wyommg  had  no  minimum  age 
requirement  for  general  factory  work;    in  Georgia  orphans  and  widows' 
children  between  twelve  and  fourteen  might  be  employed  by  permission 
of  a  commission  of  three  local  officials;   in  Mississippi  the  age  limit  was 
twelve  for  boys  and  fourteen  for  girls. 


SAFETY  AND  HEALTH  335 

permits  or  employment  certificates  must  be  obtained  by 
the  children  and  placed  on  file  in  the  establishment  before 
they  can  be  employed  therein. 

The  age  limit  in  some  of  the  earliest  child  labor  laws  ap- 
plied only  to  cotton  and  woolen  factories  and  to  a  few  other 
special  industries  where  the  evils  of  child  labor  were  sup- 
posed to  be  most  flagrant.  In  other  laws  the  prohibition  was 
general  for  all  work  in  "manufacturing  or  mechanical  estab- 
lishments." It  is  only  in  comparatively  recent  years  that 
the  minimum  age  limit  for  employment  has  been  applied  in 
the  majority  of  states  to  mercantile  establishments  and  other 
places  of  employment  as  well  as  to  factories.1  In  most  states 
children  under  fourteen  years  of  age  are  now  excluded  from 
employment  in  a  list  of  establishments  including — in  addition 
to  factories,  mills,  workshops,  and  stores — certain  other  places, 
such  as  hotels,  restaurants,  laundries,  bowling-alleys,  and 
theaters,  where  conditions  appear  to  warrant  such  exclusion. 

Nevertheless,  most  of  the  state  laws  are  defective  in  that 
they  fail  to  cover  all  the  occupations  from  which  children 
should  be  excluded.  In  fact,  the  rapidly  changing  industrial 
conditions  render  it  practically  impossible  to  draw  up  a  list  of 
occupations  that  will  be  complete  for  any  length  of  time,  even 
though  it  is  complete  at  the  time  the  law  is  enacted.  The  ten- 
dency of  those  who  are  experienced  in  drafting  child  labor  laws 
now  is  to  use  the  general  term  "in  any  gainful  occupation,"  in- 
stead of  a  specified  list.  Agriculture  and  domestic  service  are, 
however,  frequently  exempted  from  this  general  prohibition. 

Recognizing  that  securing  protective  legislation  state  by 
state  was  likely  to  be  a  tedious  process,  which  would  result 
at  best  in  undesirable  diversity  of  standards,  opponents  of 
child  labor  have  of  recent  years  turned  to  federal  action. 
Accordingly,  in  1916  Congress  enacted  a  measure  which  for- 
bade the  transportation  in  interstate  commerce  of  the  products 
of  factories  in  which  children  under  fourteen  had  been  em- 
ployed, or  in  which  children  between  fourteen  and  sixteen  had 
worked  more  than  eight  hours  a  day  or  six  days  a  week  or  at 

1  The  five  states  named  in  the  preceding  footnote  had  in  1920  no  mini- 
mum age  for  employment  in  stores  except  the  restriction  imposed  during 
school  hours  by  the  compulsory  education  law.  Florida  had  a  fourteen  - 
year  limit  for  factories,  but  a  twelve-year  limit  for  stores. 


336       PRINCIPLES  OF  LABOR  LEGISLATION 

night.  The  same  prohibition  was  applied  to  products  of  mines 
employing  children  under  sixteen.1 

One  day  before  the  act  was  to  have  gone  into  effect  a  per- 
manent injunction  was  secured  restraining  its  enforcement  in 
a  North  Carolina  court  district.  The  person  who  sued  out 
the  injunction  was  a  poor  cotton-mill  operative  who  asked  not 
to  be  deprived  of  the  wages  of  his  two  boys.  He  was  repre- 
sented, however,  by  counsel  from  New  York  and  from  two 
North  Carolina  cities,  and  the  strongest  opposition  to  the 
measure  while  before  Congress  had  come  from  southern  mill- 
owners.  The  United  States  Supreme  Court,  to  which  the 
matter  was  appealed,  held  the  law  unconstitutional  as  an 
undue  extension  of  the  power  to  regulate  interstate  commerce.2 

Undeterred  by  this  reverse,  the  friends  of  child  labor  re- 
striction continued  their  efforts.  In  1919  Congress  again 
enacted  the  protective  standards  which  had  been  temporarily 
overthrown  two  years  earlier.  Instead  of  seeking  enforce- 
ment through  the  power  to  regulate  interstate  commerce,  the 
act  was  this  time  based  on  the  taxing  power.  That  is,  a  pro- 
hibitive tax  of  10  per  cent,  was  levied  on  the  annual  net  profits 
of  any  concern  which  employed  children  in  violation  of  the 
standards  named.  The  same  North  Carolina  federal  district 
judge  who  enjoined  the  enforcement  of  the  earlier  statute  de- 
clared the  second  measure  also  unconstitutional,  and  at  the 
beginning  of  1920  the  case  was  again  before  the  federal  Supreme 
Court.  As  the  "power  to  tax"  has  repeatedly  been  held  to 
include  the  "power  to  destroy,"  it  appeared  probable  that  the 
court  would  uphold  the  new  act.  In  so  doing  it  would  merely 
be  sanctioning  the  same  method  for  protecting  children  against 
premature  or  excessive  labor  that  has  already  been  upheld 
for  protecting  bankers  against  undue  inflation  of  the  currency, 
dairy  farmers  against  attractively  colored  oleomargarine,  and 
workers  in  the  match  industry  against  phosphorus  poisoning.3 

1  United  States,  C.  432,  64th  Congress,  ist  session. 

1  Hammer  v.  Dagenhart,  247  U.  S.  251,  38  Sup.  Ct.  529  (1918). 

3  Even  if  laws  are  declared  unconstitutional,  competent  observers  be- 
lieve that  the  rise  of  a  more  far-sighted  and  scientific  spirit  among  south- 
ern industrial  managers,  and  especially  the  spread  of  organization  among 
the  mill  population,  will  soon  bring  to  an  end  the  more  flagrant  abuses  of 
child  labor.  See,  for  instance,  Broadus  Mitchell,  "The  End  of  Child 
Labor,"  The  Survey,  August  23,  1919,  pp.  747-750. 


SAFETY  AND  HEALTH  337 

One  of  the  most  important  acts  of  the  International  Labor 
Conference  which  convened  at  Washington,  D.  C.,  under  the 
covenant  of  the  League  of  Nations  in  October,  1919,  was  the 
adoption  of  a  draft  convention  prohibiting  the  employment 
of  children  under  fourteen  years  of  age  in  industrial  under- 
takings. Because  of  the  low  state  of  industrial  standards  in 
Japan  and  India,  these  countries  were  given  considerable  time 
for  adjusting  themselves  to  the  new  requirements. 

The  fact  that  so  much  progress  has  been  made  in  the  last 
decade  in  the  enactment  of  child  labor  legislation,  and  that 
the  fourteen-year  limit  has  been  so  generally  established, 
especially  for  factory  work,  does  not  mean  that  premature 
employment  of  children  is  eradicated.  There  is  serious  danger 
that  since  the  most  sensational  stages  in  the  fight  against 
child  labor  have  passed,  public  opinion  will  become  apathetic 
and  not  perceive  the  inadequacies  of  laws  that  may  have  at 
one  time  been  a  great  step  in  advance.  Unfortunately  most 
of  the  laws  bear  the  scars  of  conflicts  with  short-sighted  legis- 
lators as  well  as  with  powerful  interests  who  either  looked  upon 
the  employment  of  children  as  necessary  to  their  prosperity 
or  considered  prohibitive  legislation  an  encroachment  on 
their  business  rights.  Exemptions — chief  of  which  has  been 
the  exemption  of  the  "poor  widow's"  child  and  children  of 
"dependent  parents,"  a  relic  of  the  days  of  the  Elizabethan 
poor  law — have  been  the  curse  of  child  labor  laws. 

In  addition  to  the  minimum  age  of  fourteen  for  entrance 
to  general  factory  work,  many  states  set  a  limit  of  sixteen 
years  for  certain  more  dangerous  processes,  and  in  some 
states  an  additional  two  years'  maturity  is  required  for  en- 
trance to  a  number  of  extra-hazardous  occupations.  The 
first  group  of  occupations  may  include  such  employments  as 
the  cleaning  and  oiling  of  machinery,  the  adjusting  of  belts, 
the  operation  of  machine  saws  or  of  stamping,  washing,  grind- 
ing, and  mixing  machines,  and  the  manufacture  of  lead  prod- 
ucts or  of  compositions  containing  poisonous  acids,1  while  in 
the  second  group  is  work  in  mines,  at  blast  furnaces,  or  on 
railroads,  in  the  outside  erection  of  electric  wires,  or  in  the 
manufacture  of  explosives.2  Some  states  have  established 

1  Connecticut,  Laws  1911,  C.  123. 

2  Arizona,  Revised  Statutes  1913,  Sec.  3127. 


338       PRINCIPLES  OF  LABOR  LEGISLATION 

minimum  limits  as  high  as  eighteen  or  even  twenty-one  for 
night  messenger  service  or  other  morally  dangerous  work.1 
A  growing  tendency  is  manifest  to  give  to  state  boards  of 
health  or  state  labor  departments  power  to  add  to  the  lists 
of  dangerous  and  extra-hazardous  employments.2 

Age  restrictions  for  entrance  to  dangerous  occupations  have 
been  repeatedly  upheld  as  a  valid  exercise  of  the  police  power,3 
and  in  some  states  illegal  employment  of  a  child  deprives  the 
employer  of  the  defenses  of  assumption  of  risk 4  and  con- 
tributory negligence.5  The  provision  empowering  health 
authorities  and  others  to  extend  the  lists  of  prohibited  occupa- 
tions for  children  of  certain  ages  has  been  held  not  to  be  an 
unwarranted  delegation  of  legislative  authority.6 

All  the  important  countries  of  Europe  possess  similar  grad- 
uated restrictions  upon  engaging  in  remunerative  employ- 
ment at  too  extreme  youth,  and  the  principle  of  adding  to  the 
lists  of  prohibited  occupations  by  administrative  authorities 
is  well  established.  Frequently,  also,  the  authorities  are  per- 
mitted to  allow  exemptions  from  the  application  of  the  laws.7 

A  serious  shortcoming  of  most  of  our  child  labor  laws  is 
their  failure  to  deal  adequately  with  child  labor  on  city 
streets.  We  have  more  or  less  thoroughly  prohibited  the  pre- 
mature employment  of  children  in  factories,  stores,  and  other 
places,  but  have  inconsistently  allowed  boys  and  girls  of  ten- 
der years  to  be  exposed  to  perhaps  a  worse  moral  and  physical 
environment  in  vending  newspapers,  gums,  and  other  articles 
on  the  streets,  without  sufficient  regulation.  In  1920  only 
one  or  two  states,  as  Kentucky  and  Maryland,  had  the  same 
age  limit,  fourteen  years,  for  all  street  trades  as  for  other  em- 
ployment. Several  states  have  a  fourteen-year  limit  for  boot- 


1  New  York,  for  instance,  has  a  twenty-one  year  minimum  for  night 
messenger  service  (Laws  1910,  C.  342). 

2  As  in  Massachusetts,  Laws  1913,  C.  831,  Sees.  4.  6. 

3  Lenahan  v.  Pittston  Coal  Mining  Co.,  218  Pa.  311,  67  Atl.  642  (1907). 
*  Sterling  v.  Union  Carbide  Co.,  142  Mich.  284,  105  N.  W.  755  (1905). 
6Strafford  v.  Republic  Iron  &  Steel  Co.,  238  111.  371,  87  N.  E.  358 

(1909). 

6  Louisville,  Henderson  &  St.  Louis  R.  Co.  v.  Lyons,  155  Ky.  396, 
159  S.  W.  971  (1913). 

r  For  extended  discussions  of  this  matter  see  Bulletins  No.  80  and  89  of 
the  United  States  Bureau  of  Labor,  on  "Woman  and  Child  Wage-Earners 
in  Great  Britain"  and  "Child  Labor  Legislation  in  Europe,"  respectively. 


SAFETY  AND  HEALTH  339 

blacking  and  peddling,  and  a  twelve- year  limit  for  newsboys. 
So  far  only  about  half  the  states  l  have  passed  laws  regulating 
the  employment  of  children  in  street  trades,  and  in  these  the 
prevailing  age  limit  for  newsboys  is  twelve  years.  Because 
of  the  additional  moral  danger  to  girls  the  age  limit  for  them 
is  usually  four  or  six  years  higher  than  for  boys. 

Suggestions  have  frequently  been  made  that  a  uniform  age 
limit  for  all  regular  gainful  occupations  is  not  scientific,  as 
some  children  are  more  mature  and  fit  to  work  at  thirteen  years 
of  age  than  others  are  at  fifteen.  No  practical  method  has 
yet  been  found,  however,  of  determining  the  physiological 
age  of  children,  and  the  age  limit  will  probably  always  prove 
the  most  satisfactory  standard.  The  purpose  of  the  minimum 
age  is  to  prevent  improper  toil  before  the  child  has  passed 
the  most  formative  period  of  adolescence,  and  also  to  give 
the  child  a  chance  for  a  necessary  minimum  of  education. 
Recent  scientific  studies  of  the  physical  effects  of  modern  in- 
dustry on  children,  and  recent  investigations  2  of  the  educa- 
tional needs  of  children  in  industry,  indicate  that  the  fourteen- 
year  limit  is  not  adequate  in  either  of  the  above  respects. 
There  is  .a  strong  tendency  in  the  more  advanced  states  to 
eliminate  all  children  under  sixteen  from  industry.  Ohio  has 
had  for  several  years  a  fifteen-year  limit  for  boys  and  a  six- 
teen-year limit  for  girls.  A  law  with  a  fifteen-year  minimum 
age  limit  was  passed  in  Michigan,3  chiefly  through  the  efforts 
of  the  Employers'  Association  of  Detroit.  Industries  of  the 
best  type  are  finding  that  children  under  sixteen  do  not  pay. 
Organized  labor,  also,  has  taken  a  determined  stand  for  the 
sixteen-year  minimum  age  during  the  months  in  which  the 
public  schools  are  in  session,  and  for  a  sixteen-year  compulsory 


1  In  1920  legislation  on  this  subject  was  found  in  Alabama,  Arizona, 
Colorado,   Delaware,   District  of  Columbia,   Florida,   lov/a,   Kentucky, 
Maryland,    Massachusetts,    Missouri,    Nevada,    New   Hampshire,    New 
Jersey,  New  York,  Oklahoma,  Pennsylvania,  Porto  Rico,  Rhode  Island, 
Utah,  Virginia,  Wisconsin.     In  Nevada  the  law  merely  makes  children  in 
street  employment  subject  to  the  control  of  the  juvenile  courts. 

2  See,  for  instance,  Child  Labor  Bulletin,  Vol.  I,  No.  I,  "Child  Labor  and 
Education";   United  States  Bureau  of  Education,  Bulletin  1913,  No.  19, 
"German  Industrial  Education  and  Its  Lesson  for  the  United  States," 
Holmes  Beckwith;    Seattle  Children  in  School  and  in  Industry,  published 
in  1915  by  the  Seattle,  Wash.,  Board  of  School  Directors. 

3  Michigan,  Laws  1915,  No.  255. 


340       PRINCIPLES  OF  LABOR  LEGISLATION 

education  limit.  Educators  are  generally  accepting  this  as 
the  standard  that  must  eventually  be  adopted. 

(b)  Physical  Requirements.  While  it  may  be  impracticable 
to  substitute  a  physiological  for  the  ordinary  chronological 
age  test,  it  is  nevertheless  true  that  physical  development  as 
well  as  age  should  determine  the  child's  eligibility  for  em- 
ployment. So  far  state  laws  have  not  designated  any  stand- 
ard physical  requirements,  but  have  merely  contained  the 
rather  meaningless  provision  that  children  must  be  physically 
fit.  A  physical  examination  of  all  applicants  for  certificates 
was  in  1920  required  by  some  dozen  leading  states.1  In  sev- 
eral other  states  the  official  granting  employment  certificates  is 
authorized  to  ask  for  the  physical  examination  of  the  appli- 
cant if  he  considers  him  of  doubtful  health  and  strength. 

Because  of  the  lack  of  definite  standards  these  examinations 
depend  for  their  value  almost  entirely  on  the  physician  who 
happens  to  make  them.  In  New  York  City,  for  instance,  the 
physical  examination  of  applicants  for  certificates  is  well 
standardized.  Blanks  are  used  in  the  examination  of  each 
child  which  include  not  only  the  height  and  weight,  but  a 
test  of  the  eyesight  and  hearing,  and  an  examination  of  the 
condition  of  the  teeth,  the  heart,  the  lungs,  throat,  and  nostrils, 
and  the  general  physical  condition.  The  same  blanks  are 
used  throughout  the  state,  but  in  smaller  towns  they  are  usually 
very  poorly  filled  out. 

If  the  physical  examination  is  to  be  a  real  test  of  the  child's 
fitness,  the  medical  examiner  must  know  the  prospective  place 
of  employment  and  have  a  knowledge  of  the  conditions  and 
processes  in  the  various  industries  in  which  children  are  em- 
ployed. Under  the  English  law,  accordingly,  the  certifying 
surgeon  must  examine  the  child  in  the  factory  where  he  is 
entering  employment,  and  if  the  child  changes  employment  he 
must  be  re-examined  in  the  same  manner.2  Wherever  medical 
examination  of  children^  in  the  public  schools  is  extensively 
developed,  the  records  of  the  child's  physical  progress  should 


1  Connecticut,  Iowa,  Kentucky,  Maryland,  Massachusetts,  Minnesota, 
New  Hampshire,  New  Jersey,  New  York,  Ohio,  Pennsylvania,  Rhode 
Island.  The  Massachusetts  act  (Laws  1906,  C.  502)  was  the  first  of  this 
type. 

!  Factory  and  workshop  act,  1901  (i  Edw.  7,  C.  22,  Sec.  64  (3).) 


SAFETY  AND  HEALTH  341 

be  kept  in  such  form  that  they  can  be  compared  with  the 
examination  at  the  time  the  child  proposes  to  leave  school. 
In  smaller  cities  the  simplest  arrangement  is  for  the  school 
medical  examiner  to  make  the  examinations  of  children  apply- 
ing for  certificates.  In  New  York  state,  where  certificates  are 
issued  by  the  boards  of  health  instead  of  by  the  public  schools, 
the  examinations  are,  of  course,  supposed  to  be  made  by  the 
health  officers,  or  under  their  supervision,  and  there  is  seldom 
any  cooperation  with  the  school  examiners. 

A  single  examination  at  the  time  of  application  for  em- 
ployment certificates  will  not,  however,  even  when  it  has  been 
put  on  a  more  scientific  basis  than  at  present,  be  sufficient 
protection  for  the  health  of  working  children.  In  order  that 
children  may  not  be  injured  by  the  work  they  do,  examina- 
tions must  be  repeated  periodically.  New  York  has  recog- 
nized this  fact  by  establishing  a  corps  of  medical  examiners 
under  the  department  of  labor,  who  have  authority  to  exam- 
ine children  in  any  industry,  and  on  their  recommendation 
the  employment  certificate  of  any  child  found  to  be  unfit  for 
the  work  he  is  doing  is  canceled.  This  provision  will  prob- 
ably be  embodied  in  the  laws  of  other  states  as  public  opinion 
gradually  comes  to  realize  the  necessity  of  safeguarding  the 
child's  health  after  he  has  entered  industry  in  the  same  way 
as  is  now  being  done  to  a  large  extent  up  to  the  time  that  he 
leaves  school. 

(c)  Educational  Requirements.  Merely  to  compel  the  child 
to  go  to  school  until  it  is  fourteen  years  of  age  does  not  guar- 
antee the  attainment  of  any  definite  minimum  of  education. 
Hence  a  number  of  states  forbid  the  employment  of  children 
who  do  not  come  up  to  certain  standards  of  knowledge. 
These  standards,  however,  vary  considerably.  About  half 
the  states  require  only  that  applicants  for  employment  certif- 
icates be  able  to  read  and  write  English.  Illinois  requires  liter- 
acy, but  not  necessarily  in  English.  „  Several  states  require 
the  attainment  of  certain  grades  in  the  public  schools,  or 
equivalent  instruction.  Completion  of  the  eighth  grade  is 
now  the  standard  in  nearly  half  the  states. 

Several  states  require  attendance  at  school  for  a  minimum 
period  either  during  the  year  previous  to  the  birthday  at  which 
the  child  becomes  o!4  enough  to  go  to  work,  or  during  the 


342       PRINCIPLES  OF  LABOR  LEGISLATION 

year  previous  to  the  time  the  certificate  is  issued.  This 
required  period  of  attendance  may  vary  from  the  entire 
school  year  to  twelve  weeks  or  less.  Instruction  in  certain 
specified  subjects,  usually  reading,  writing,  spelling,  geogra- 
phy, and  arithmetic  through  common  fractions,  is  required  in 
some  states. 

The  provision  that  children  who  have  been  granted  "work- 
ing papers"  but  are  under  sixteen  years  of  age  shall  attend 
school  unless  regularly  employed  is  common,  but  little  atten- 
tion has  been  paid  to  its  enforcement.  Once  an  employment 
certificate  has  been  secured  the  child  is  usually  forgotten  by 
the  school  authorities,  unless  the  law  requires  that  the  certifi- 
cate be  sent  direct  to  the  employer  and  returned  by  him  to 
the  issuing  office  when  the  child's  employment  terminates, 
the  certificate  at  no  time  becoming  the  property  of  the  child. 
The  principal  benefit  of  such  a  provision  is  that  it  tends  to 
check  children  from  leaving  school  to  enter  temporary  "blind 
alley"  jobs. 

Much  of  the  time  of  the  child  under  sixteen  who  drifts 
from  one  dull,  monotonous  job  to  another  is  wasted,  as  far 
as  education  and  training  are  concerned.  Consequently  the 
completion  of  the  eighth  grade  seems  little  enough  schooling 
to  require  of  children  who  go  to  work  under  sixteen. 

(d)  Special  Problems  in  Enforcing  Restrictions  on  Child  Labor. 
Difficult  as  it  has  been,  and  still  is,  to  place  comprehensive 
child  labor  laws  on  the  statute  books,  it  is  even  more  difficult 
to  build  up  their  effective  administration. 

The  principal  agencies  for  the  enforcement  of  child  labor 
laws  are  the  departments  of  labor,  the  school  authorities,  and 
income  states  the  boards  of  health.  Probation  officers  and 
private  child  welfare  agencies  may  sometimes  aid.  In  some 
states  special  child  labor  inspectors  are  appointed;  in  fact, 
factory  inspection  has  usually  begun  with  the  enforcement  of 
the  child  labor  law  before  other  labor  legislation  was  estab- 
lished. In  all  cases,  however,  enforcement  rests  primarily 
with  the  factory  inspection  organizations. 

Few,  if  any,  states  have  an  adequate  corps  of  inspectors,1 
and  in  the  southern  states,  where  the  child  labor  problem  is 

1  See  Chapter  IX,  "Administration,"  p.  451. 


SAFETY  AND  HEALTH  343 

most  serious,  the  provision  for  enforcement  is  most  meager.1 
The  experience  of  state  after  state  has  demonstrated  that 
without  official  inspection  child  labor  laws  are  dead  letters. 
%  The  issuance  of  employment  certificates  is  the  first  step 
m  the  administration  of  the  minimum  standards  for  entrance 
to  industry.  In  most  states  where  certificates  are  required 
they  are  issued  by  the  local  school  authorities.  In  New  York 
they  are  issued  by  the  boards  of  health,  which  has  proven 
very  unsatisfactory  for  the  state  as  a  whole,  as  the  health 
officers  are  for  the  most  part  poorly  paid  and  busy  with  their 
other  duties,  and  look  upon  the  issuing  of  certificates  as  a 
tedious  task  thrust  upon  them  without  compensation.  In  a 
very  few  states  no  employment  certificates  are  required,  the 
affidavit  of  the  parent  being  accepted  as  proof  of  age.2 

Under  the  prevailing  method  of  issuance  through  the  school 
authorities  uniformity  is  secured  by  the  use  of  standard  blanks 
throughout  the  state,  by  regular  monthly  or  more  frequent 
reports  either  to  the  commissioner  of  labor  or  to  the  state 
superintendent  of  education,  and  by  a  certain  amount  of 
centralized  supervision  on  the  part  of  these  officials.  This 
method  is  the  most  practical  because  the  school  office  is  the 
most  convenient  place  for  the  children  and  their  parents  to 
go  to  obtain  the  certificates;  because  the  local  school  authority 
knows  the  child  through  his  record  or  through  personal  con- 
tact, and  thus  there  is  less  likely  to  be  falsification  in  regard 

1  In  North  Carolina  the  commissioner  of  labor  statistics  had,  until  1919, 
no  power  to  inspect  if  the  employer  chose  to  prevent  him.     In  Alabama 
the  enforcement  of  the  child  labor  law  has  been  entrusted  to  the  state 
prison  inspector,  who  must  divide  his  time  with  the  inspection  of  jails  and 
almshouses.     An  investigation  made  in  Mississippi  by  the  National  Child 
Labor  Committee  in  1914  disclosed  in  nearly  every  factory  in  the  state 
wholesale  violations  of  the  law  passed  in  1912,  which  by  way  of,, enforce- 
ment merely  provided  that  the  county  sheriffs  were  to  inspect  the  fac- 
tories "at  least  once  each  month,"  and  the  county  health  officers  to  in- 
spect "at  least  twice  each  year."     Only  two  of  these  local  officials  were 
found  who  had  ever  been  inside  the  places  they  were  supposed  to  inspect, 
and  not  a  single  one  knew  the  provisions  of  the  law.     Those  who  had  paid 
any  attention  at  all  to  it  had  contented  themselves  with  naively  asking 
the  owner  of  the  mill  if  he  was  living  up  to  the  law.     (See  Child  Labor 
Bulletin,  Vol.  II,  No.  4,  February,  1914,  "The  Majesty  of  the  Law  in 
Mississippi,"  Edward  N.  Clopper.)     Following  the  exposure  the  Missis- 
sippi legislators  finally  passed  a  law  providing  a  factory  inspector. 

2  In  1915  there  were  seven  states  in  this  class.     By  1920  they  had  been 
reduced  to  two — Mississippi  and  Wyoming. 


344       PRINCIPLES  OF  LABOR  LEGISLATION 

to  age;  and  because  the  local  school  authority  is  likely  to  be 
much  more  interested  in  keeping  the  child  in  school  and  will 
make  more  of  .an  effort  to  point  out  the  inadvisability  of  al- 
lowing it  to  leave  for  some  temporary  and  unnecessary  em- 
ployment. The  enforcement  of  the  compulsory  education 
law,  also,  is  so  closely  connected  with  the  enforcement  of  the 
child  labor  law  that  the  two  should  be  coordinated  under 
the  school  authorities  in  each  community.  The  same  sets 
of  records  are  necessary  for  the  issuance  of  certificates  and 
for  the  enforcement  of  the  compulsory  education  law.  The 
school  census,  the  record  of  the  child's  age  on  entering  school, 
and  its  progress  in  school  are  equally  important  to  the  enforce- 
ment of  both  laws.  Applicants  who  have  been  refused  employ- 
ment certificates  should  be  reported  at  once  to  the  school  at- 
tendance department  in  order  that  they  may  be  returned  to 
school,  and  the  names  of  all  children  to  whom  certificates  have 
been  granted  should  be  reported  to  the  principals  of  the  schools. 
In  the  regulation  of  children's  work  in  street  trades,  badges  to 
be  worn  conspicuously  and  renewed  annually  have  been  found 
essential  to  enforcement,  and  the  responsibility  for  adminis- 
tration rests  chiefly  with  the  educational  authorities. 

Cooperation  between  the  child  labor  inspectors  and  the 
schools  is  necessary  that  both  may  discharge  their  respon- 
sibility to  the  best  advantage  of  the  child.  A  careful  issuance 
of  employment  certificates  and  a  thorough  enforcement  of 
the  compulsory  education  law  make  the  work  of  the  labor 
inspector  much  easier.  It  is  desirable,  furthermore,  that 
truant  officers  have  the  power  to  inspect  establishments  where 
children  are  employed,  and  they  should  be  the  local  represent- 
atives of  the  state  child  labor  inspectors,  reporting  to  them 
all  violations  and  aiding  them  in  getting  evidence  to  bring 
prosecutions.  The  actual  presentation  of  evidence  in  the 
courts  should  always  be  done  by  the  state  inspector,  who  is 
free  from  local  pressure. 

The  important  provisions  of  what  has  been  called  a  model 

law  in  regard  to  employment  certificates  are  as  follows : 1 

/.No  child  under  sixteen  should  be  engaged  unless  the  child 

presents  to  the  employer  an  employment  certificate,  which 

1  Practically  the  provisions  of  the  Ohio  law  (General  Code,  1910,  Sees. 
7765-7770. 


SAFETY  "AND   HEALTH  345 

should  be  kept  on  file  during  the  child's  employment  and  re- 
turned to  the  issuing  office  when  the  employment  terminates. 
These  certificates  should  be  issued  only  by  the  local  super- 
intendent of  schools,  or  by  some  one  designated  by  him  in 
writing,  and  should  be  given  only  after  the  following  docu- 
ments have  been  received  and  placed  on  file: 

(1)  The  pledge  of  the  employer  that  he  expects  to  employ 
the  child  and  will  return  the  certificate  to  the  issuing  office 
as  soon  as  the  child  leaves  his  employ. 

(2)  The  child's  school  record,  stating  the  age,  ability  to 
read  and  write,  and  school  grade,  signed  by  the  principal  of 
the  school  that  the  child  last  attended. 

(3)  Evidence  of  age,  in  the  following  order:  (a)  birth  cer- 
tificate;   (b)  baptismal  record  or  passport;    (c)  school  record 
or  other  documentary  evidence;  (d)  in  the  absence  of  anything 
else,  affidavit  of  the  parent,  with  one  or  two  disinterested 
citizens.    The  child  should  personally  appear  before  the  issu- 
ing officer  for  examination,  and  the  officer  should  satisfy  him- 
self that  the  child  is  at  least  fourteen  years  of  age,  is  able  to 
read  and  write  English,  and  has  had  a  course  of  instruction 
equivalent  to  seven  yearly  grades  in  the  public  schools. 

(4)  A  certificate  from  the  school  physician,  board  of  health, 
or  a  licensed  physician  appointed  by  the  board  of  education, 
in  the  order  named,  showing  that  the  child  is  physically  able 
to  do  the  work  for  which  it  is  to  be  employed. 

The  certificate  should  be  transmitted  by  the  issuing  officer 
to  the  employer,  and  should  not  at  any  time  come  into  pos- 
session of  the  child,  to  be  used  as  a  license  for  idleness.  The 
blanks  should  be  furnished  by  the  state  commissioner  of  labor, 
to  whom  should  be  sent  monthly  a  list  of  the  names  of  chil- 
dren for  whom  certificates  have  been  issued,  returned,  or  re- 
fused. Such  lists  should  give  the  names  and  addresses  of 
the  prospective  employers  and  the  nature  of  the  occupations 
in  which  the  children  intend  to  engage.  Factory  inspectors 
and  truant  officers  should  be  empowered  to  demand  that 
certificates  be  obtained  to  prove  the  age  of  children  apparently 
under  sixteen  who  claim  to  be  over  that  age.1 

1  The  federal  Children's  Bureau  publishes  from  time  to  time  thorough 
investigations  of  the  administration  of  child  labor  laws  in  various  states, 
pointing  out  the  strength  and  weakness  of  the  laws* 


346       PRINCIPLES  OF  LABOR  LEGISLATION 

Even  more  for  the  sake  of  uniformity  in  enforcement  than 
for  uniformity  in  restrictions  on  child  labor,  federal  legislation 
is  needed.  The  plan  of  the  law  on  this  subject  enacted  by 
Congress  in  1919  was  to  place  the  enforcement  in  the  hands 
of  the  federal  internal  revenue  office,  whose  inspectors  would 
be  free  from  local  bias  or  pressure.  The  work  of  these  in- 
spectors, it  is  believed  by  those  who  promoted  the  bill,  will 
not  obviate  the  need  of  state  factory  inspectors  or  of  interest 
in  the  enforcement  of  the  law  by  local  school  officials  and 
others,  but  it  will  support  the  local  authorities  and  aid  them 
in  resisting  any  influences  which  might  be  brought  to  bear 
to  prevent  them  from  prosecuting  for  violations.  Advocates 
of  the  measure  believe,  also,  that  the  federal  courts  will  be 
more  likely  to  find  against  a  man  who  violates  a  federal  law 
regarding  the  employment  of  children  than  the  local  courts 
are  to  convict  for  violation  of  state  laws.  This  would  be  an 
important  gain,  because  it  is  not  at  all  an  uncommon  thing 
for  the  state  factory  inspector  to  have  a  case  dismissed  by 
the  judge  after  the  most  careful  evidence  has  been  presented, 
merely  because  the  judge  does  not  see  that  any  great  injustice 
has  been  done  the  individual  child. 

For  the  better  enforcement  of  child  labor  laws  cooperation 
between  all  the  different  agencies  that  are  interested  is  es- 
sential. The  standards  which  have  been  and  will  be 
established  in  regard  to  the  entrance  of  children  into  in- 
dustry will  never  be  thoroughly  enforced  until  the  problem 
of  administration  is  taken  up  with  the  same  enthusiasm 
and  persistence  which  have  marked  the  campaigns  for  legis- 
lation. 

b.  Women.  The  exclusion  of  women  from  various  branches 
of  industry  is  based  primarily  on  their  inherently  weaker  re- 
sistance to  certain  health  dangers,  and  sometimes  upon  moral 
grounds  or  upon  their  special  need  for  protection  at  certain 
periods,  as  just  before  and  after  childbirth.  Legislation  to 
this  end  is  much  less  extensively  developed  in  America  than 
in  Europe. 

(a)  Prohibited  Employments.  In  America  almost  all  laws 
forbidding  the  employment  of  women  in  designated  occupa- 
tions or  under  designated  conditions  relate  to  work  in  mines 
and  saloons.  Work  in  mines  is  forbidden  to  women  in  most 


SAFETY  AND  HEALTH  347 

/ 

of  the  mining  states,1  and  work  in  saloons  (except  by  mem- 
bers of  the  family)  in  about  fifteen  states,2  but  in  neither 
of  those  occupations  has  the  problem  of  female  labor  been  as 
serious  as  it  is  in  England  and  in  some  other  European  coun- 
tries where  similar  prohibitions  are  in  force.  In  addition,  a 
few  scattered  provisions  of  various  sorts  are  found.  Two  or 
three  states  have  forbidden  the  employment  of  women  in 
cleaning  moving  machinery.3  Arizona  forbids  the  work  of 
women  "in  any  capacity  "  in  which  they  must  remain  standing 
constantly,4  and  New  York  and  Ohio  forbid  women  to  oper- 
ate certain  kinds  of  emery  and  other  polishing  wheels.5  New 
York  also  forbids  the  employment  of  women  coremakers  in 
foundries  if  the  cores  are  baked  in  the  room  where  they  are 
made.6 

In  Europe  the  evil  effects  of  certain  kinds  of  work  are  mucn 
better  known  than  in  this  country,  and  it  is  well  recognized 
that  even  the  most  careful  regulation  of  working  conditions 
in  these  occupations  would  not  suffice  to  prevent  injury  to  the 
health  of  women  employed  therein.  Accordingly,  European 
legislation  forbids  the  work  of  women  in  a  fairly  wide  list  of 
occupations,  most  of  which  involve  the  presence  of  dusts, 
fumes,  vapors,  gases  or  substances  of  a  poisonous  or  clearly 
harmful  character.  Among  women  workers  in  white  lead, 
for  instance,  it  was  discovered  that  a  serious  derangement  of 
the  reproductive  organs  frequently  occurred,  and  that  the  per- 
centage of  miscarriages  and  still-births  among  married  women 
was  exceedingly  high.  Therefore,  in  most  European  countries, 
and  also  in  Argentina,  women  are  forbidden  to  work  in  the 
dangerous  processes  in  which  this  poison  is  used.  The  Inter- 
national Labor  Conference  of  1919  recommended  the  exclusion 
of  women,  as  well  as  of  children  under  eighteen,  from  work  in 

1  Alabama,  Arizona,  Arkansas,  Colorado,  Illinois,  Indiana,  Maryland, 
Missouri,  New  York,  Oklahoma,  Pennsylvania,  Utah,  Virginia,  Wash- 
ington, West  Virginia,  Wisconsin,  Wyoming. 

2  Connecticut,  Idaho,  Iowa,  Louisiana,  Maryland,  Michigan,  Missouri, 
Montana,  New  Hampshire,  New  Mexico,  New  York,  Ohio,  Texas,  Utah, 
Vermont. 

3  Louisiana,  Minnesota,  West  Virginia. 

4  Arizona,  Revised  Statutes  1913,  Sec.  3115. 

5  New  York,  Laws  1913,  C.  464;   Ohio,  General  Code  1910,  Sec.  1027; 
15  (as  amended  by  Laws  1911,  p.  428). 

6  New  York,  Laws  1913,  C.  464. 


348      PRINCIPLES  OP  LABOR  LEGISLATION  v 

a  number  of  dangerous  lead  trades.  In  France  females  are 
forbidden  even  to  enter  a  place  in  which  any  one  of  forty-six 
especially  dangerous  processes  is  carried  on,  and  nearly  one 
hundred  additional  occupations  are  forbidden  except  under 
special  protective  conditions.  Similar  lists  are  found  in  the 
more  important  European  countries  and  even  Spain,  long 
backward  in  social  legislation,  has  forbidden  the  employment 
of  women  and  minor  children  in  a  long  list  of  occupations. 
While  it  is  true  that  women  in  foreign  countries  often  engage 
in  work  done  only  by  men  in  this  country,  yet  many  women 
are  undoubtedly  at  work  here  in  industries  so  dangerous  to 
their  health  that  an  extension  of  prohibitory  legislation  is 
urgently  needed. 

(b)  Childbirth  Protection.  It  was  not  until  1911  that  the 
prohibition  of  the  industrial  employment  of  women  for  a 
stated  period  before  and  after  childbirth  became  the  subject 
of  legislation  in  America.  Such  statutes  were  passed  by 
Massachusetts  in  1911,  New  York  in  1912,  Connecticut  and 
Vermont  in  1913,  and  Missouri  in  1919.  The  Massachusetts 
act  is  a  representative  one.  It  forbids  "knowingly"  employ- 
ing any  woman  in  "a  manufacturing,  mechanical,  or  mercan- 
tile establishment"  within  two  weeks  before  or  four  weeks  after 
childbirth.1 

The  desirability  of  such  additional  protection  for  working- 
women  at  the  time  of  childbirth  has  been  recognized  by  most 
European  countries  and  by  several  outside  of  Europe.  The 
prohibited  period  is  generally  similar  to  that  found  in  America, 
from  two  to  four  weeks  before  and  from  four  to  six  or  eight 
weeks  after  confinement.  The  International  Labor  Confer- 
ence in  Washington  in  1919  drew  up  a  draft  convention  pro- 
hibiting industrial  employment  of  women  for  six  weeks  after 
childbirth,  and  permitting  them  to  leave  work,  if  they  wished 
to,  six  weeks  before  confinement.  European  laws  are  rendered 
more  effective  than  the  American  by  their  frequent  connec- 
tion with  provisions  for  maternity  insurance.2  For  instance, 
under  the  German  system  of  health  insurance,  a  woman 
worker  is  paid  benefits  of  half -wages  for  two  weeks  before  and 
six  weeks  following  confinement,  or  longer  if  she  is  unable  to 

1  Massachusetts,  Laws  1911,  C.  229. 

2  See  "Maternity  Insurance,"  p.  422. 


SAFETY  AND  HEALTH  349 

return  to  work  at  the  end  of  that  time.  Such  insurance  is 
needed  partly  to  make  up  for  the  income  loss  during  the  en- 
forced period  of  idleness,  and  may  also  be  an  important  aid  in 
the  enforcement  of  the  law.  The  necessity  for  such  law  in 
effective  form  is,  however,  undoubtedly  less  in  this  country 
than  abroad,  where  the  employment  of  women  with  young 
children  is  much  more  frequent. 

c.  Men.  Legal  regulations  for  the  exclusion  of  men  from 
dangerous  employments  are  never  of  universal  application, 
as  they  are  in  the  case  of  children  and  women,  but  are  limited 
to  certain  classes  or  groups  of  individuals  who  must  be  ex- 
cluded on  definite  grounds,  usually  ascertained  by  examina- 
tion. The  grounds  of  exclusion  may  be  either  physical  or 
technical.  Although  the  distinction  does  not  always  hold, 
physical  requirements  are  in  the  main,  intended  to  protect 
the  worker  who  is  debarred,  while  in  the  case  of  technical 
qualifications  the  protection  of  fellow-workmen  or  of  the  gen- 
eral public  is  an  added  if  not  the  main  consideration.  Physi- 
cal qualifications,  also,  are  usually  concerned  with  health; 
technical  qualifications  with  safety. 

(a)  Physical  Qualifications.  Physical  qualifications  estab- 
lished by  law  are  of  four  kinds:  (i)  reasonable  immunity  from 
the  trade  malady  characteristic  of  the  employment;  (2)  free- 
dom from  a  trade  malady  contracted  in  the  course  of  em- 
ployment; (3)  freedom  from  a  contagious  disease  which  might 
be  passed  on  to  other  workmen  or  to  consumers  of  the  product ; 
and  (4)  freedom  from  physical  defect  of  such  nature  as  to 
interfere  with  the  proper  performance  of  duty.  It  will  be 
noted  that  the  first  two  qualifications  look  toward  the  health 
of  f the  workman  himself,  and  that  the  last  two  look  mainly 
toward  the  health  and  safety  of  other  persons. 

The  qualification  of  immunity  from  a  particular  occupational 
disease  was  found  in  1920  in  only  four  American  states,  but  is 
more  common  abroad.  The  New  York,1  New  Jersey,2  and 
Pennsylvania 3  statutes  and  the  Massachusetts  administra- 
tive order  regulating  work  in  compressed  air  require  that  ap- 
plicants must  be  found  physically  qualified  by  a  physician 

1  New  York,  Laws  1909,  C.  291. 

2  New  Jersey,  Laws  1914,  C.  121. 
^Pennsylvania,  Laws  19171  No.  364, 


350       PRINCIPLES  OF  LAB  (^LEGISLATION' 

paid  by  the  employer,  and  these  laws  also  exclude  persons 
addicted  to  the  excessive  use  of  intoxicants.  In  Europe 
examinations  for  entrance  to  compressed-air  work  are  re- 
quired in  France%and  in  Holland,  the  latter  country  specify- 
ing a  long  list  of*  ailments,  such  as  obesity,  heart  or  lung  dis- 
eases, and  affections  of  the  nose  and  ears,  any  one  of  which 
debars  from  the  work.  Austria  bars  from  work  in  paper-mills 
all  workers  with  open  wounds,  persons  with  delicate  respira- 
tory organs,  and  consumptives.  Still  more  common  is  the 
requirement  of  a  medical  certificate  of  fitness  as  a  condition 
of  entering  the  more  dangerous  lead  trades,  which  is  found  in 
Austria,  France,  Germany,  Great  Britain,  and  Russia.  Ger- 
many specifically  prohibits  the  employment  in  these  trades  of 
applicants  with  lung,  kidney,  or  stomach  trouble,  a  generally 
weak  constitution,  04  an  addiction  to  alcohol;  France,  of 
those  who  exhibit  syirf^oms  of  lead  poisoning  or  of  any 
complaint  likely  to  be  dangerously  aggravated  by  plumbism. 
Belgium  also  forbids  the  employment  of  alcoholics  in  the 
white  lead,  lead  oxide,  or  lead  paint  trades. 

It  is  obvious,  however,  that  merely  debarring  from  entrance 
to  an  unhealthy  trade  those  demonstrably  susceptible  to  its 
dangers  is  insufficient  protection.  The  worker's  real  power  of 
resistance  to  a  specific  hazard  often  cannot  be  determined 
until  he  has  been  exposed  to  it,  and  if  he  begins  to  show 
symptoms  of  succumbing  he  cannot  be  too  quickly  removed. 
Hence  arises  the  necessity  for  the  second  qualification,  free- 
dom from  a  trade  malady  contracted  in  the  course  of  em- 
ployment. . 

Most  common  occupational  diseases  are  of  such  slow  in- 
ception that  a  capable  physician  can  detect  them  in  the  early 
stages  before  their  cumulative  effects  have  become  serious. 
To  make  sure,  therefore,  that  the  originally  healthy  employee 
is  in  fact  successfully  resisting  the  risk  with  which  he  is  sur- 
rounded, the  initial  examination,  when  it  is  given,  must  be 
supplemented  by  periodical  re-examinations  at  intervals  grad- 
uated according  to  the  degree  of  risk.  Sometimes  periodic 
examinations  are  required  even  when  there  are  no  restrictions 
upon  entrance  to  the  trade. 

Such  is  the  case  with  the  monthly  examinations  required 
under  the  "lead  laws"  of  the  important  lead-using  states. 


SAFETY  AND  HEALTH  351 

The  Ohio  l  and  Pennsylvania  2  laws  apply  to  the  manufacture 
of  certain  of  the  more  poisonous  lead  salts,  such  as  white 
lead,  red  lead,  and  arsenate  of  lead  (Paris  green) ,  while  the  later 
New  Jersey  3  statute  covers  also  the  manufacture  of  pottery, 
tiles,  or  porcelain-enameled  sanitary  ware  in  so  far  as  lead  is 
used. 

In  all  three  of  these  states  the  physician  who  discovers  a 
case  of  lead  poisoning  must  report  it  not  only  to  the  state 
departments  of  labor  and  of  health,  but  also  to  the  employer, 
who  after  five  days  must  not  continue  the  "leaded"  employee 
in  a  dangerous  process  nor  return  him  thereto  without  a 
physician's  written  permit.4 

Provision  for  regular  re-examination  is  also  found  in  the 
three  American  compressed-air  laws  already  mentioned.  Under 
these  the  examination  must  be  repeated  after  the  first  half- 
day's  work,  on  returning  to  work  after  ten  days'  absence 
from  any  cause,  and  after  three  months'  continuous  employ- 
ment, and  workmen  who  have  ceased  to  be  qualified  must 
be  excluded. 

In  the  more  dangerous  lead  trades  workers  are  subject  to 
regular  examination  in  nearly  all  European  countries.  Eng- 
land and  Germany,  moreover,  require  examinations  both  in 
alkali  chrome  works,  where  corrosions  of  the  mucous  mem- 
brane are  common,  and  in  rubber  vulcanizing  works,  where 
there  is  danger  from  the  noxious  gas  bisulphide  of  carbon. 
France  requires  similar  examinations  in  compressed-air  work. 
The  frequency  of  examination  varies  from  once  a  week  in 
the  British  white  lead  industry,  to  every  six  months  among 
German  painters,  although  once  a  month,  as  in  the  American 
lead  trades,  is  the  most  usual  period.  In  the  Netherlands 
stone  masons  are  entitled  to  medical  examination  at  the  em- 
ployer's expense  once  a  year.  In  order  that  the  advantages 
of  cumulative  experience  may  not  be  lost,  a  factory  record  of 
the  results  of  medical  examinations,  especially  if  they  result 

1  Ohio,  Laws  1913,  p.  819.          2  Pennsylvania,  Laws  1913,  No.  851. 

3  New  Jersey,  Laws  1914,  C.  162. 

4  Similar  laws  in  Illinois  (Laws  1911,  p.  330). and  Missouri  (Laws  1913, 
p.  402)  cover  wider  ranges  of  related  industries,  including  zinc  smelting 
and  work  with  arsenic,  brass,  mercury,  and  phosphorus,  but  do  not  re- 
quire the  removal  from  danger  of  workmen  who  show  symptoms  of  the 
resultant  diseases. 


352       PRINCIPLES  OP  LABOR  LEGISLATION 

in  findings  of  disease,  is  nearly  always  required,  and  must 
usually  be  kept  by  the  examining  physician.1 

The  third  physical  qualification,  absence  of  contagious  dis- 
ease, is  applied  occasionally  in  bakeshops  2  and  in  other  food 
establishments,8  while  the  fourth,  freedom  from  physical  de- 
fect which  might  interfere  with  proper  performance  of  duty, 
is  mentioned  in  a  few  states  which  require  an  examination 
of  railroad  employees  for  color-blindness  or  other  defective 
sight.4 

(6)  Technical  Qualifications.  Far  more  numerous  than  the 
examinations  to  test  an  adult  workman's  fitness  for  a  given 
occupation  upon  physical,  or  health,  grounds,  are  those  re- 
quired in  nearly  all  states  for  the  licensing  of  men  to  carry 
on  certain  trades  after  a  test  of  experience,  skill,  or  general 
education.  Laws  for  the  examination  and  registration  of 
barbers,5  horseshoers,6  plumbers,7  electricians,8  moving-picture 
machine  operators,9  chauffeurs,10  railroad,11  street-car,12  and 
steamboat 13  employees,  elevator  operators,14  and  even  aero- 
nauts,15 are  designed  primarily  for  the  protection  of  the  pub- 

1  In  Germany  this  record  is  called  a  "control  book,"  and  must  con- 
tain the  name  of  the  person  keeping  it,  first  and  last  name,  address  and 
age  of  each  workman,  date  of  his  entering  and  leaving  the  employment, 
date  and  nature  of  his  illness,  date  of  his  recovery,  name  of  the  factory 
physician,  and  dates  and  results  of  the  medical  examinations.  The  em- 
ployer is  responsible  for  the  correctness  of  the  record,  and  must  show  it 
to  the  factory  or  medical  inspector  on  demand.  The  Austrian  health 
register  goes  into  even  more  detail. 

*  See,  for  instance,  Connecticut,  General  Statutes  1902,  Sec.  2570. 

'Maryland,  Laws  1914,  C.  678,  Sec.  I  (e). 

1  For  example,  Ohio,  General  Code  1910,  Sec.  12548. 

6  Found  in  1920  in  fifteen  states. 

•Found  in  1920  in  four  states  and  in  Hawaii.  These  laws  have  been 
declared  unconstitutional  in  Illinois,  New  York,  and  Washington,  as 
unduly  interfering  with  a  calling  not  requiring  regulation  on  grounds  of 
public  health  and  comfort. 

7  Found  in  1920  in  twenty-four  states,  the  District  of  Columbia,  and 
Porto  Rico. 

8  Found  in  1920  in  three  states. 

'  Found  in  1920  in  six  states. 

1  Found  in  1920  in  twenty-three  states  and  in  the  Philippine  Islands. 

1  Found  in  1920  in  seventeen  states. 

!  Found  in  1920  in  only  three  states— Louisiana,  New  York,  and 
Washington. 

u  Found  in  1920  in  the  United  States,  eight  states,  and  the  Philippine 
Islands. 

1  Found  in  1920  in  Minnesota  alone. 

16  Found  in  1920  in  the  one  state  of  Connecticut,  Laws  1911,  C.  86. 


SAFETY  AND  HEALTH  3-53 

He,  and  need  only  be  mentioned.1  More  closely  related  to  the 
subject  are  technical  examinations  for  miners  and  for  firemen 
and  engineers  in  charge  of  stationary  boilers. 

Statutes  requiring  the  examination  and  registration  or 
licensing  of  certain  classes  of  coal  mine  employees  exist  in 
practically  all  of  the  important  mining  states.2  Managers, 
foremen  or  bosses,  fire  bosses,  mine-examiners,  and  hoisting 
engineers  are  the  employees  for  whom  licenses  are  usually 
required,  but  some  of  the  newer  laws  cover  all  miners,  each  of 
whom,  however,  is  allowed  one  unlicensed  apprentice.3  Can- 
didates must  present  affidavits  attesting  their  good  character 
and  sobriety,  must  have  a  specified  number  of  years'  experi- 
ence, must  be  residents  of  the  state,  and  must  pass  the  exami- 
nation prescribed  by  an  examining  board.  The  increase  of 
foreign-born  workmen  among  the  miners  is  reflected  by  the 
growing  number  of  states  which  require  ability  to  read  and 
speak  English.4  A  fee  ranging  from  $i  to  $5  is  charged  for 
the  examination  and  license.  The  examining  boards  are  com- 
posed of  from  three  to  five  men,  one  of  whom  is  usually  a 
state  mine  inspector,  the  others  being  miners  and  mine- 
owners  or.  superintendents  in  equal  number. 

Finally,  in  a  number  of  states  5  and  in  the  District  of  Colum- 
bia no  one  may  serve  as  fireman  or  engineer  in  connection  with 
a  stationary  boiler  who  has  not  been  found  qualified  by  a 
state  or  local  examining  board.  Moral  character  and  tem- 
perate habits,  one  to  three  years'  experience,  and  a  minimum 
age  limit  are  specified  in  a  few  instances,  and  the  license  is 
generally  revokable  for  negligence,  intoxication,  or  violation 
of  law  or  regulations. 

Because  they  fear  loss  of  employment  if  found  to  be  suffer- 

1  Similar  in  intent  is  the  Wisconsin  Industrial  Commission  order  of 
1917,  fixing  standards  of  technical  skill  for  bricklayers  as  a  prerequisite 
for  giving  a  certificate  to  apprentices  in  the  trade. 

2  Such  statutes  existed  in  1920  in  the  fifteen  states  of  Alabama,  Colorado, 
Illinois,  Indiana,  Iowa,  Kentucky,  Missouri,  Montana,  Ohio,  Oklahoma, 
Pennsylvania,  Tennessee,  Utah,  Virginia,  and  Wyoming. 

3  Illinois,  Laws  1913,  p.  438,  Sec.  I. 

4  See,  for  example,  Kentucky,  Laws  1914,  C.  79,  Art.  XVI,  Sec.  I. 

5  In  1920  licenses  for  stationary  firemen  and  engineers  (exclusive  of 
those  in  mines)  were  required  in  the  eleven  states  of  Georgia,  Maine, 
Maryland,  Massachusetts,  Minnesota,  Missouri,  Montana,  Nevada,  New 
Jersey,  Ohio,  and  Pennsylvania.     Many  cities  also  require  licenses  under 
city  ordinances. 

23 


354       PRINCIPLES  OF  LABOR  LEGISLATION 

ing  from  some  disqualifying  ailment,  workmen  have  at  times 
protested  against  medical  examinations  conducted  by  the  em- 
ployer. Aside  from  possible  abuse  of  such  information,  how- 
ever, the  advantages  to  be  gained  by  the  workman  through 
exclusion  or  timely  removal  from  a  disease-breeding  occupation 
would  outweigh  the  hardship  due  to  temporary  loss  of  wages 
while  awaiting  recovery  or  securing  other  work.  Even  the 
wage  loss,  when  exclusion  is  due  to  illness,  can  be  in  large  part 
taken  care  of  by  the  extension  of  workmen's  compensation 
to  embrace  occupational  diseases  and  by  the  institution  of 
systems  of  universal  health  insurance. l  For  the  physician,  also, 
the  practice  of  examining  large  bodies  of  men  at  the  place  of 
employment  will  lead  to  added  insight  into  the  trade  causes 
of  disease,  an  insight  which  unfortunately  is  as  yet  only 
rudimentary.  In  any  compulsory  system  of  medical  exami- 
nation the  physician  should  be  employed  by  the  state. 


(2)  Prohibition  of  Substances  or  Instruments 

The  most  notable  example  of  the  application  of  the  method 
of  prohibition  to  a  dangerous  substance  is  the  world-wide 
banishing  of  poisonous  phosphorus  from  the  match  industry. 
Within  eleven  years  after  the  commercial  introduction  of  the 
phosphorus  match  in  1827  the  disease  known  as  "  phossy  jaw, " 
or  phosphorus  necrosis,  was  attracting  the  attention  of  govern- 
ment investigators.  Various  efforts  to  eliminate  the  disease 
by  regulation  having  signally  failed,  Finland  in  1872  forbade 
the  use  of  white  phosphorus  in  match  factories,  and  similar 
action  was  taken  by  Denmark  in  1874.  In  France,  where 
match-making  is  a  government  monopoly,  the  profits  from  the 
industry  were  wiped  out  by  sickness  and  death  claims  until 
a  harmless  substitute  was  discovered  and  the  dangerous  in- 
gredient prohibited  in  1897.  Other  countries  followed,  and  in 
1906,  on  account  of  the  difficulty  of  eliminating  poisonous  phos- 
phorus in  countries  with  an  important  export  trade,  the  Inter- 
national Association  for  Labor  Legislation  secured  an  inter- 
national conference  at  Berne  which  resulted  in  1906  in  the 


1  See  "Health  Insurance,"  p.  415. 


SAFETY  AND  HEALTH  355 

unique  expedient  of  an  international  convention  l  providing 
for  the  absolute  prohibition  of  the  manufacture,  importation, 
or  sale  of  matches  made  from  white  phosphorus.  This  treaty 
was  signed  at  once  by  Denmark,  France,  Germany,  Italy, 
Luxemburg,  the  Netherlands,  and  Switzerland,  and  a  few 
years  later  by  Great  Britain,  Spain,  and  numerous  colonies.2 
Canada  and  Mexico  also,  without  becoming  signatories  to  the 
treaty,  have  prohibited  the  poisonous  substance  in  the  match 
industry.  A  recommendation  that  nations  which  had  not 
yet  done  so  should  adhere  to  this  Berne  convention  was 
adopted  by  the  International  Labor  Conference  at  Washington 
in  1919. 

In  the  United  States  the  question  was  first  given  national 
prominence  in  1910  by  the  report  of  a  federal  investigation.3 
Two  years  later,  in  April,  1912,  Congress  placed  a  prohibitory 
tax  of  2  cents  a  hundred  on  matches  containing  white  phos- 
phorus, and  prohibited  their  import  or  export.4  The  power  of 
internal  revenue  taxation  which  Congress  had  previously  exer- 
cised for  the  benefit  of  bankers  and  farmers  was  thus  for  the 
first  time  used  for  protecting  the  health  of  wage-earners. 

Against  only  one  other  industrial  substance — lead — has 
the  drastic  method  of  prohibition  been  invoked,  and  in  this 
case  the  prohibitory  legislation  is  found  only  in  Europe. 
Austria  was  first  to  act,  forbidding  in  1908  the  use  of  lead  in 
all  paints,  colors,  or  cement  used  for  interior  work,  and  the 
same  year  the  Swiss  administrative  departments  were  ordered 
to  forbid  the  use  of  white  lead  in  painting  carried  on  in  their 
behalf.  The  most  thoroughgoing  action  in  this  regard,  how- 
ever, has  been  taken  by  France,  which  in  1909  declared  that 
after  July  20,  1914,  the  use  of  "  white  lead,  of  linseed  oil  mixed 
with  lead,  and  of  all  specialized  products  containing  white 
lead,  will  be  forbidden  in  all  painting,  no  matter  of  what 
nature,  carried  on  by  working  painters  either  on  the  outside 


1  For  text  of  this  convention  see  Bulletin  of  the  International  Labor 
Office,  Vol.  I,  1906,  pp.  275-276. 

2  For  complete  list  see  table,  Bulletin  of  the  International  Labor  Office, 
Vol.  VII,  1912,  following  p.  503. 

3  United   States   Bureau  of   Labor,   Bulletin   No.   86,  January,    1910, 
"Phosphorus   Poisoning  in  the  Match  Industry,"   John   B.   Andrews, 
pp.  31-146. 

4  United  States,  Laws  1911-1912,  C.  75. 


356       PRINCIPLES  OF  LABOR  LEGISLATION 

or  on  the  inside  of  buildings."  1  Belgium,  France,  and  Ger- 
many also  forbid  the  removal  of  lead  paint  by  any  dry  rub- 
bing or  scraping  process. 

A  few  prohibitions  apply  not  to  substances,  but  to  instru- 
ments of  work.  One  of  these  is  contained  in  the  Massachusetts 
statute  intended  to  protect  textile  mill  operatives  from  "the 
of  death."  This  law,  in  order  to  prevent  the  transfer 
from  worker  to  worker  of  tuberculosis  and  other  infections, 
prohibits  the  use  of  any  form  of  shuttle  "in  the  use  of  which 
any  part  of  the  shuttle  or  any  thread  is  put  in  the  mouth  or 
touched  by  the  lips  of  the  operator."  2  Contagious  diseases 
among  glass-blowers  are  guarded  against  in  France  and  Portu- 
gal by  prohibitions  against  the  use  by  more  than  one  person 
of  the  same  blowpipe. 

3.  REGULATION 

The  method  of  regulation,  in  the  prevention  of  occupational 
accident  and  disease,  as  in  other  social  problems,  is  based  on 
the  principle  of  toleration  within  limits.  The  majority  of  the 
people  may  believe  that  certain  dangerous  machines  or  proc- 
esses are  so  necessary  a  part  of  our  industrial  life  that  their 
prohibition  is  at  present  undesirable  or  at  least  impracticable. 
In  dealing  with  industrial  accidents  and  diseases  the  adoption 
of  this  principle  leads  in  the  work-places  to  the  installation  of 
machine  guards,  fire-escapes,  dust  and  fume  removal  systems, 
separate  wash-rooms  and  eating-rooms;  and  for  the  work- 
people  to  the  limitation  of  working  hours.  As  the  latter  point 
has  been  considered  in  the  chapter  on  "Hours  of  Labor" 
only  the  regulation  of  work-places  need  be  treated  here. 

Furnishing  a  reasonably  safe  place  in  which  to  work  is  plainly 
the  duty  of  the  employer,  and  was  so  recognized  under  the 
common  law  and  by  the  employers'  liability  statutes.  Not 
all  industrial  managers,  however,  are  equally  watchful  and 


1  United  States  Bureau  of  Labor,  Bulletin  No.  95,  July,  1911,  p.  180. ' 
*  Massachusetts,  Laws  1911,  C.  281.     A  similar  statute  was  enacted  in 

RJiode  Island  (Laws  1918,  C.  1632;,  while  Connecticut  (Laws  1919,  C. 

27)  sought  to  accomplish  the  same  hygienic  object  by  requiring  mill 

operators  to  furnish  weavers  with  appliances  making  it  unnecessary  to 

touch  thread  or  shuttle  with  the  lips. 


SAFETY  AND  HEALTH  ^357 

energetic,  even  if  all  were  equally  alive  to  their  social  respon- 
sibility in  the  matter,  and  hence  has  arisen  the  need  of  stand- 
ards, drafted  and  enforced  by  public  authority,  which  will 
throw  about  the  work-people  the  necessary  protection.  So 
diversified  are  the  various  branches  of  industry  and  the  acci- 
dent and  disease  hazards  in  each  that  separate  codes  have 
grown  up  about  them.  These  codes  deal  in  the  main  with 
(i)  factories  and  workshops,  (2)  mines  and  tunnels,  and  (3) 
transportation . 

i 
(i)  Factories  and  Workshops 

Modifying  to  meet  its  own  conditions  a  mass  of  legislation 
already  existing  in  Great  Britain,  Massachusetts  passed  on 
May  n,  1877,  the  first  American  law  requiring  factory  safe- 
guards. This  pioneer  law  touched  on  nearly  all  of  the  points 
now  covered  by  our  most  advanced  statutes  for  the  prevention 
of  factory  accidents.  It  provided  for  the  guarding  of  belting, 
shafting,  and  gearing,  prohibited  the  cleaning  of  moving  ma- 
chinery, required  elevators  and  hoistways  to  be  protected, 
and  called  for  sufficient  means  of  egress  in  case  of  fire.  Prac- 
tically every  state  in  the  union  now  has  a  factory  and  work- 
shop act  prescribing  minimum  conditions  of  safety. 

a.  Machine  Guards.  The  point  perhaps  most  frequently 
dealt  with  is  safeguarding  of  machinery.  Mechanism  for  the 
transmission  of  power,  like  belting,  shafting,  and  gearing, 
as  well  as  active  parts  of  machines,  such  as  saws,  planers, 
mangles,  and  emery-wheels,  must  usually  be  securely  guarded, 
but  if  this  is  not  considered  possible  it  is  sometimes  required 
that  notice  of  the  danger  be  conspicuously  posted.  vSet-screws 
or  other  projections  must  be  countersunk  beneath  the  level 
of  the  shaft  or  otherwise  guarded,  while  shafts  and  belts,  and 
floor  openings  through  which  they  pass,  must  be  cased  or 
railed  off.  A  statute  found  only  in  the  great  textile  state  of 
Massachusetts  requires  looms  to  be  provided  with  guards 
which  will  prevent  injury  from  flying  shuttles.1  It  has  often 
but  not  uniformly  been  held  by  the  courts  that  failure  to  pro- 
vide the  required  safeguards  is  negligence  per  se?  and  that 

1  Massachusetts,  Laws  1909,  C.  514,  Sec.  101. 

2  Davis  ».  Mercer  Lumber  Co.,  164  Ind.  413,  73  N.  E.  899  (1905). 


358       PRINCIPLES  OF  LABOR  LEGISLATION 

the  worker  does  not  assume  the  risk  of  the  employer's  negligent 
disregard  of  duty,  even  though  he  is  aware  of  it.1  Many  safe- 
guards can  be  applied  best  and  most  economically  during  the 
original  building  of  the  machine,  and  Minnesota  has  pro- 
hibited the  manufacture  or  sale  of  mechanism  with  danger 
points  unguarded.2  The  same  idea,  is  found  in  the  laws  of 
some  European  countries,  and  a  growing  number  of  American 
dealers  are  acting  upon  it  without  legislative  compulsion.3 

It  is  not  sufficient,  however,  for  a  safeguard  to  be  attached 
to  a  machine.  If  the  guard  is  to  do  its  work  it  must  be  actually 
used.  A  number  of  states  have  therefore  passed  provisions 
forbidding  any  person  to  move,  displace,  or  destroy  any  safety 
device  except  under  rules  established  by  the  employer,  and 
some  specify  immediate  repairs  as  the  only  cause  for  which  a 
machine  guard  may  be  removed  during  the  active  operation  of 
the  machine.  A  related  clause  forbids  employees  to  operate 
or  tamper  with  machines  with  which  they  are  not  familiar  or 
which  are  not  connected  with  their  regular  duties. 

In  case  of  accident  it  is  important  that  the  operative  be 
able  to  stop  the  machine  at  once.  It  is  commonly  required, 
therefore,  that  shafting  be  fitted  with  tight  and  loose  pulleys, 
and  that,  belt-shifters  or  poles  be  supplied  for  shifting  the 
belt  quickly  and  safely  from  one  to  the  other.  Some  states 
require  friction  clutches  for  stopping  machinery,  and  in  ad- 
dition to  all  these  means  of  safety  Illinois,  among  other  states, 
requires  speaking-tubes,  electric  bells,  electric  colored  lights 
or  other  means  of  communication  between  the  workroom  and 
the  engine-room.  Other  regulations  governing  moving  ma- 
chinery forbid  cleaning  or  repairing  it  while  in  motion,  and 
overcrowding.  Closely  related  to  the  foregoing  provisions 
are  those  dealing  with  covers  or  other  safeguards  on  such 
stationary  equipment  as  vats  and  pans. 

Among  other  provisions  against  accident  are  frequent  re- 
quirements that  stairs  must  be  properly  screened  at  sides  and 
bottom,  must  have  rubber  treads  if  thought  necessary  by  the 

1  Evansville  Hoop  &  Stave  Co.  v.  Bailey,  43  Ind.  App.  153,  84  N.  E. 
549  (1908). 

2  Minnesota,  Laws  1913,  C.  316,  Sec.  5. 

011      R'   Commons,    "How  the  Wisconsin   Industrial  Commission 


n 

\Vorks,     American  Labor  Legislation  Review,   February,    1913,   p.    13; 

Labor  and  Administration,  1913,  Ch.  XXXI. 


SAFETY  AND  HEALTH  359 

commissioner  of  labor,  and  must  be  furnished  with  substantial 
hand-rails.  Stair  openings  on  each  floor  must  be  closed,  as 
well  as  entrances  to  elevator  shafts.  Trap-doors,  fences,  gates, 
or  other  safeguards  may  be  required  for  hoistways,  hatchways, 
and  well-holes.  It  is  often  required  that  elevators  be  pro- 
vided with  automatic  catches  to  prevent  falling.  In  Wiscon- 
sin the  industrial  commission  had,  in  1920,  issued  more  than 
seventy-five  orders  looking  to  the  safe  construction  and  oper- 
ation of  passenger  and  freight  elevators.1 

Protection  against  explosions  of  stationary  boilers  is  best 
exemplified  by  the  methods  of  the  Massachusetts  Board  of 
Boiler  Rules.  This  board,  one  of  the  earliest  forerunners  of 
the  industrial  commission  plan  of  drafting  and  enforcing 
safety  measures,  was  established  in  1907. 2  It  is  composed 
of  five  members:  the  chief  inspector  of  the  boiler  inspection 
department,  who  serves  as  chairman;  one  representative  of 
the  boiler  manufacturing  interests;  one  representative  of  the 
boiler-using  interests;  one  representative  of  the  boiler-insur- 
ance interests ;  and  one  operating  engineer.  The  duties  of  the 
board  include  the  formulation  of  rules  for  the  construction, 
installation,  operation,  and  inspection  of  steam-boilers.  For 
this  purpose  public  hearings  and  private  conferences  are  held, 
and  the  rules  as  formulated  are  submitted  to  the  governor 
for  approval.  When  approved  they  are  published  and  have 
the  full  force  of  law.  The  success  of  this  system  in  reducing 
the  number  of  boiler  explosions  has  led  to  its  adoption  in 
many  states  and  cities,  even  as  far  away  as  Manila. 

b.  Protection  against  Fire.  Though  the  prevention  of  fire  is 
of  far  more  importance  than  providing  means  of  escape,  legal 
provisions  covering  this  point  are  of  comparatively  late  devel- 
opment. It  was  not  until  1911,  for  instance,  that  New  Jersey 
ordered  cans  to  be  provided  for  combustible  waste,  and  it  was 
not  until  1912  that  New  York  required  gas-jets  to  be  inclosed 
in  globes,  wire  cages,  or  other  protection,  and  forbade  smoking 
in  factories.  Meanwhile,  disastrous  factory  fires  in  both 
states,  due  in  part  to  lack  of  these  safeguards,  had  attracted 
the  attention  of  the  country,  and  resulted  in  much  legislation. 
In  some  states  floors  must  now  be  swept  daily  and  the  sweep- 

1  Industrial  Commission  of  Wisconsin,  Elevator  Code,  1918. 

2  Massachusetts,  Laws  1907,  C.  465,  Sees.  24-28. 


36o       PRINCIPLES  OF  LABOR  LEGISLATION 

ings  removed,  and  the  quantity  of  explosives  that  may  be 
kept  in  a  building  is  carefully  regulated.  Sometimes  fac- 
tories must  be  equipped  with  an  automatic  gas-cock  or  ap- 
pliance by  which  in  case  of  fire  the  supply  of  gas  may  be  shut 
off  without  entering  the  building. 

Required  means  of  extinguishing  fires  include  pails  of  water 
or  sand,  a  standpipe  and  hose  of  specified  dimensions,  fire 
extinguishers  or  automatic  sprinkler  systems.  The  major 
part  of  fire  laws,  however,  is  devoted  to  provisions  for  prompt 
escape.  In  the  early  days  of  this  legislation,  since  no  one  had 
taken  the  time  to  study  out  what  would  constitute  effective 
egress,  lawmakers  contented  themselves  in  most  cases  with 
ordering  "suitable  and  sufficient"  exits  and  escapes.  Now 
the  most  elaborate  details  as  to  material  and  construction 
are  found.  Balcony  escapes,  fire  towers,  or  chutes  or  to- 
boggans may  be  used  in  different  states.  Doors  must  be  con- 
structed to  open  out  or  slide,  and  must  not  be  fastened  in  any 
way  during  working  hours.  Sometimes  the  number  of  em- 
ployees to  the  floor  is  regulated,  periodical  fire  drills  are  called 
for,  and  gongs,  and  red  lights  or  other  "Exit"  signs,  must  be 
installed.  A  growing  number  of  states  require  plans  for  fire 
egress  in  new  buildings  to  be  passed  upon  by  labor  or  building 
department  officials. 

c.  Lighting,  Heating,  and  Ventilation.  Although  proper 
lighting  affects  both  the  health  and  comfort  of  the  work- 
man and  his  liability  to  accident,  less  attention  has  been  paid 
to  this  phase  of  industrial  safety  and  hygiene  than  to  almost 
any  other  point  of  similar  importance.  Comparatively  few 
states  have  enacted  any  legislation  on  the  subject,  and  most 
of  those  limit  themselves  to  meaningless  and  unenforceable 
provisions  such  as  that  factories  must  be  "well  and  sufficiently 
lighted."  A  long  step  in  advance  was  made  by  the  Oregon 
statute  of  1919,  requiring  factories  to  be  lighted  according  to 
a  minimum  scale  of  values  to  be  recommended  by  the  Illumi- 

1  Connecticut  (General  Statutes  1902,  Sec.  4518)  adds  that  painted, 
stained,  or  corrugated  glass  in  factory  windows  must  be  removed,  "where 
the  same  is  injurious  to  the  eyes  .  .  .  upon  the  order  of  the  factory  in- 
spector.  In  other  words,  Connecticut  permits  any  factory-owner  to 
block  out  light  by  any  one  of  the  three  methods  named  until  ordered  to 
t  by  the  inspector,  who  must,  however,  first  prove  that  the  dark- 
ness is  injurious. 


SAFETY  AND  HEALTH  361 

nating  Engineering  Society,  subject  to  modifications  after 
public  hearing.1 

Artificial  lighting  in  factories  is  notoriously  bad  because  of 
poor  quality,  insufficient  quantity,  haphazard  distribution 
resulting  in  spots  of  excessive  intensity  separated  by  danger- 
ous shadows,  and  glare  caused  by  lack  of  shades  or  diffusing 
mediums.  Many  eye  specialists  assert  that  from  80  to  90 
per  cent,  of  headaches  are  due  to  eye  strain,  and  in  the  pro- 
duction of  eye  strain  improper  lighting  is  an  important  factor. 
The  effects  of  poor  illumination  are  particularly  severe  upon 
women  workers,  because  of  their  more  delicate  nervous  or- 
ganization. Yet  at  the  present  stage  of  the  art  all  harmful 
light  conditions  in  factories  could  be  done  away  with  easily 
and  cheaply.  "It  can  easily  be  shown,"  declares  one  ex- 
pert, "that  a  workman  earning  only  $2  per  day  of  ten  hours 
would  have  to  lose  but  three  minutes  of  his  time  to  make  a 
loss  to  the  manufacturer  equal  to  the  cost  of  all  the  artificial 
light  he  could  possibly  require  during  the  entire  day."  2 

Indications  of  what  a  really  scientific  law  on  factory  light- 
ing might  be  are  found  in  the  Holland  statute.  There  women 
and  children  are  forbidden  to  work  in  establishments  where 
artificial  illumination  is  ordinarily  required  between  9  A.M. 
and  3  P.M.  For  processes  exceptionally  trying  to  the  eyes, 
such  as  embroidering,  typesetting,  and  instrument-making,  a 
minimum  light  of  one  and  one-half  foot-candles  is  specified, 
while  for  less  exacting  occupations  the  minimum  is  one  foot- 
candle. 

With  the  growth  of  industrial  commissions  in  the  United 
States  there  is  now  developing  a  body  of  regulations  prescrib- 
ing standards  of  factory  lighting  by  administrative  order.3 

A  few  states  authorize  the  inspector  to  require  changes  in 
heating  apparatus  found  dangerous  to  health,  but  no  stand- 
ards of  proper  or  permissible  temperature  are  set  up.  Massa- 
chusetts has  established  for  certain  textile  processes  a  grad- 
uated standard  of  humidity  permissible  at  certain  tempera- 


1  Oregon,  Laws  1919,  C.  181. 

2F.  Leavenworth  Elliott,  "Factory  Lighting,"  American  Labor  Legis- 
lation Review,  June,  1911,  p.  116. 

3  See,  for  instance,  Industrial  Accident  Commission  of  California, 
General  Lighting  Safety  Orders,  1919. 


362       PRINCIPLES  OF  LABOR  LEGISLATION 

tures,1  but  only  there  and  in  Illinois  is  the  subject  of  humidity 
mentioned.  Yet  apart  from  the  presence  of  dusts  and  fumes, 
the  only  atmospheric  condition  which  has  been  thoroughly 
proven  harmful  is  the  combination  of  excessive  heat  with  ex- 
cessive humidity. 

Recognition  of  the  importance  of  ventilation  is  more  wide- 
spread. Industrial  dust  and  fume,  whether  metallic,  chemical, 
vegetable,  or  animal  in  origin,  and  whether  poisonous  or  not, 
are  among  the  most  insidious  and  serious  of  modern  health 
hazards,  and  the  illness  and  death  of  wage-earners  vary  almost 
in  direct  proportion  to  the  contamination  of  the  air  supply. 
Hence  about  half  the  states  have  enacted  provisions  that  fac- 
tories shall  be  ventilated.  The  wording,  however,  is  in  most 
cases  so  vague  that  it  means  but  little/  Among  the  first  laws 
which  attempted  to  establish  even  an  elementary  standard 
of  ventilation  was  the  Illinois  statute  of  1909.  Under  this 
act  the  amount  of  fresh  air  to  be  supplied  depends  upon  the 
kind  of  illumination  used,  the  cubic  air  space  furnished  for 
each  employee,  and  the  window  area  of  workrooms.2  Pro- 
visions for  from  250  to  600  cubic  feet  of  air  space  for  every 
employee  are  now  found  in  a  few  state  laws,  but  more  impor- 
tant are  the  newer  regulations  providing  for  the  retention  and 
removal  of  dangerous  dust  and  fume  at  the  point  of  produc- 
tion by  specially  constructed  hoods,  hoppers,  exhausts,  and 
fans.  Regulations  of  this  type  have  been  established  either 
as  statute  laws  or  by  administrative  order  principally  in  the 
large  lead-using  states,  such  as  Illinois,  Missouri,  New  Jersey, 
Xe\v  York,  Ohio,  and  Pennsylvania.3  As  additional  precau- 
tions, most  of  these  laws  require  wet-cleaning  methods,  the 
use  of  respirators,  and  separate  lunch-rooms,  and  forbid  bring- 
ing any  food  or  drink  into  the  workrooms.  Similar  provisions 
in  the  laws  of  other  countries  have  helped  reduce  the  risk  of 
lead  poisoning  far  beneath  previous  American  expectations. 
For  instance,  in  an  American  white  and  red-lead  factory, 
employing  eighty-five  men  under  unregulated  conditions,  the 
doctors'  records  for  six  months  showed  thirty-five  men  "lead- 

*  Massachusetts,  Laws  1910,  C.  543. 

Illinois,  Laws  1909,  p.  202. 
1  For  a  comprehensive  act  of  this  type  see  New  Jersey,  Laws  1914, 

{-.   IO2. 


SAFETY  AND  HEALTH  363 

ed,"  while  an  English  plant  of  the  same  nature,  with  ninety 
employees,  but  under  strict  supervision,  reported  no  cases 
for  five  years.1 

In  at  least  two  cases  ventilation  statutes  have  been  de- 
clared unconstitutional  by  state  courts,  but  both  times  upon 
issues  not  related  to  the  purpose  or  benefits  of  the  laws,  and 
in  both  cases  they  were  soon  replaced  by  amended  acts.  In 
1 90 1  the  California  law  of  1889  was  challenged  on  the  ground 
that  it  made  the  commissioner  of  labor  the  judge  not  only  of 
the  need  for  means  of  dust  removal,  but  also  of  the  character 
of  the  appliance  to  be  installed.  The  supreme  court  upheld 
the  objection,2  but  the  invalid  statute  was  immediately  re- 
placed by  a  new  law,  giving  the  commissioner  power  to  order 
only  proper  appliances  instead  of  some  particular  contrivance. 
In  Illinois  a  1911  statute  forbade  the  use  of  emery  or  similar 
wheels  "in  any  basement  so  called,  or  in  any  room  lying 
wholly  or  partly  beneath  the  surface  of  the  ground."  This 
provision  the  Supreme  Court  of  Illinois  held  to  be  an  "un- 
warranted discrimination,"  since  it  condemned  all  rooms  of 
the  class  named  without  reference  to  their  adequate  ventila- 
tion or  lighting.3  The  legislature  of  1915,  however,  reenacted 
substantially  the  same  provision,  with  a  change  of  wording 
designed  to  overcome  the  objection. 

d.  Seats,  Toilets,  and  Dressing-Rooms.  In  safety  and  health 
legislation,  as  well  as  in  legislation  on  hours  and  wages,  a  dis- 
tinct tendency  is  noticeable  to  single  out  women  for  special 
protection,  on  the  grounds  of  their  greater  physical  weakness 
and  their  comparative  helplessness  as  wage  bargainers.  The 
possibilities  of  injury  from  unsafe  or  insanitary  conditions 
are  more  apparent  and  it  is  easier  to  make  a  conclusive  case 
in  their  behalf.  Not  infrequently  health  and  safety  laws  ap- 
plied only  to  women  when  first  passed,  but  were  later  extended 
to  protect  all  workers.  For  instance,  in  Colorado  a  law  which 
originally  required  hand-rails  on  stairways  only  in  buildings 
where  women  were  employed  was  extended  in  1911  to  cover 
all  work-places.4  Or  in  some  cases  a  law  affording  some  pro- 


r 


1  American  Labor  Legislation  Review,  December,  1914,  p.  539. 

2  Schaezlein  v.  Cabaniss,  135  Cal.  466,  67  Pac.  755  (1901). 

3  People  v.  Schenck,  257  111.  384,  100  N.  E.  994  (1913). 

4  Colorado,  Laws  1911,  C.  132 


3 64       PRINCIPLES  OF  LABOR  LEGISLATION 

tection  to  all  workers  may  be  of  wider  scope  in  its  application 
to  women.  Thus  in  Missouri  mechanical  means  for  dust 
removal  must  be  installed  in  all  factories  carrying  on  dusty 
processes  where  five  or  more  "persons"  are  employed,  and 
also  in  dusty  workshops  if  the  five  or  more  employees  are 
"children,  young  persons,  or  women."  1 

Particularly  striking  is  the  special  protection  of  women 
manifested  in  the  factory  and  mercantile  laws  on  seats,  toilets, 
and  dressing-rooms.  In  fact,  except  for  provisions  in  about 
half  a  dozen  states  requiring  seating  arrangements  for  motor- 
men  and  conductors  on  street-cars,  legislation  with  regard  to 
seats  exists  only  for  women.  As  far  back  as  the  end  of  the 
'seventies  the  dangers  of  constant  standing  for  salesgirls  were 
recognized,  and  it  was  urged  that  they  be  furnished  seats  and 
allowed  to  use  them.  A  law  containing  such  provisions  was 
passed  by  New  York  as  early  as  1881.  Almost  every  state 
now  requires  suitable  seats  for  females  in  at  least  mercantile 
establishments.2  The  majority  of  laws  extend  this  require- 
ment to  manufacturing  or  to  manufacturing  and  mechanical 
establishments,  and  several  states  cover  practically  all  em- 
ployments.3 The  proportion  of  seats  to  workers  is  sometimes 
fixed  and  in  many  cases  the  law  specifies  that  employers  must 
permit  the  use  of  the  seats  when  work  will  not  thereby  be 
interfered  with.4  These  laws  are  of  little  real  importance  in 
protecting  health,  however,  since  it  is  practically  impossible 
to  see  that  employers  and  foremen  allow  the  seats  to  be  used 
even  when  provided.5 

Nearly  all  the  states  likewise  require  sanitary  and  separate 
toilets  for  women  workers  in  addition  to  those  for  men,  and 
about  a  third  make  provision  for  women's  dressing-rooms. 
These  provisions  form  a  very  important  factor  in  maintaining 
the  health  and  morals  of  women  workers  in  any  establish- 

1  Missouri,  Revised  Statutes  1909,  Sees.  7858-7859. 

2  By  1920  only  Idaho,  Mississippi,  Nevada,  and  New  Mexico  were 
without  such  legislation. 

'Arizona,  Arkansas,  California,  Kentucky,  Louisiana,  Missouri, 
Montana,  Ohio,  Pennsylvania,  Texas,  Washington,  West  Virginia. 

'See  Kentucky,  Laws  1912,  C.  77,  Sec.  3,  for  both  such  provisions. 

A  law  of  this  class  which  plainly  defeats  its  own  intent  is  the  Dela- 
ware statute  of  1913  (C.  176)  which  provides  that  no  girl  under  eighteen 
may  work  in  any  employment  which  "compels  her  to  remain  standing 
constantly,  unless  seats  are  provided." 


SAFETY  AND  HEALTH  365 

ment;  the  character  of  the  employment  frequently  makes 
necessary  a  change  from  street  clothes  to  work  clothes,  and 
it  is  also  highly  desirable  that  a  suitable  place  be  provided 
where  women  and  girls  may  eat  lunch,  secure  a  little  rest  at 
the  noon  period,  and  retire  in  case  of  illness. 

For  the  lead  industries,  especially,  careful  wash-room 
standards  have  been  worked  out,  specifying  hot  and  cold 
water,  a  definite  ratio  of  basins  or  of  trough  length  to  the 
number  of  employees,  soap,  nail-brushes,  and  towels.  In  the 
best  lead  laws,  also,  such  as  those  of  New  Jersey,  Ohio,  and 
Pennsylvania,  hot  and  cold  shower-baths  are  required,  to  be 
used  at  least  twice  a  week  on  the  employer's  time,  and  to  in- 
sure the  use  or  the  baths  a  bath  register  must  be  kept.  A 
few  states  require  a  sufficient  supply  of  pure  drinking-water 
to  be  kept  in  a  readily  accessible  place.  Sometimes,  especially 
in  connection  with  foundries  and  casting-rooms,  the  lead 
trades  and  compressed-air  work,  the  dressing-rooms  must  be 
properly  heated  and  ventilated,  and  often  supplied  with  lockers 
and  with  facilities  for  drying  clothes. 

e.  Protection  from  Infectious  Disease.  Modern  industrial 
processes  subject  large  numbers  of  employees  not  only  to 
dangerous  dusts  and  vapors,  but  also  to  a  variety  of  disease- 
breeding  organisms,  carried  either  by  fellow-workmen  or  by 
the  materials  worked  upon.  As  a  protection  against  such  in- 
fection a  number  of  legal  regulations  have  been  adopted. 

Several  states,  for  example,  forbid  sleeping  in  workrooms, 
some  require  cuspidors  to  be  furnished  and  to  be  cleaned  and 
disinfected  daily.  Massachusetts  in  1913  required  that  cloths 
or  other  material  provided  for  cleaning  printing-presses  must 
be  sanitary,1  and  a  California  law  of  the  same  year  laid  down 
the  rule  that  all  wiping-rags  must  be  sterilized.2  In  every 
industrial  state  hundreds  of  cases  of  infection  or  "blood-poison- 
ing" occur  yearly,  and  about  six  out  of  every  seven  of  these 
are  the  result  of  small  scratches.  The  requirement  now  found 
in  some  states  for  a  first-aid  kit  in  factories,  workshops,  and 
mercantile  establishments  should  assist  in  reducing  this  need- 
less danger. 

Prominent  among  the  infectious  diseases  of  industry  is 

1  Massachusetts,  Laws  1913,  C.  472. 

2  California,  Laws  1913,  C.  8l. 


366       PRINCIPLES  OF  LABOR  LEGISLATION 

anthrax,  which  arises  in  the  handling  of  infected  hides  or  hair. 
Austria,  Belgium,  France,  Germany,  Great  Britain,  and  Italy 
have  all  turned  their  attention  to  eradicating  this  malady. 
Despite  searching  investigation,  however,  the  United  States 
remains  nearly  inactive.1  The  commonest  legal  safeguards  are 
provisions  for  thorough  washing,  for  overalls,  neck-coverings, 
and  gloves,  and  for  treating  instantly  scratches  and  slight 
wounds  which  offer  an  entrance  to  the  bacillus.  Disinfection 
of  bristles  and  bales  of  hair  from  suspected  localities  before 
any  work  is  done  on  them  is  insisted  on  in  some  countries. 
Another  recommendation  of  the  Washington  International 
Labor  Conference  of  1919  was  for  the  disinfection,  either  in 
the  exporting  country  or  at  the  port  of  importation,  of  wool 
contaminated  with  anthrax  spores. 

/.  Tenement  House  Manufacture.  Difficult  as  are  the  prob- 
lems connected  with  the  regulation  of  labor  conditions  in 
factories,  they  are  not  more  troublesome  than  those  en- 
countered in  the  regulation  of  tenement  workshops,  where  the 
work  is  done  by  the  family  group  in  its  customary  living- 
quarters.  ( 

Tenement  house  manufacture  is  often  looked  upon  as  a 
pleasant  and  easy  method  whereby  the  mothers  of  the  poor 
may  add  to  the  family  income  in  their  leisure  moments.  The 
fact  is  that  such  work  has  usually  proven  a  menace  to  health, 
to  wage  standards,  and  to  the  existing  labor  laws.  Conges- 
tion, insanitary  quarters,  lack  of  restriction  on  child  labor,  ab- 
solutely unregulated  hours,  and  miserable  pay  combine  to 
create  a  condition  which  endangers  the  lives  not  only  of  the 
workers,  but  of  the  purchasers  of  their  product.  Often  tene- 
ment dwellers  have  been  found  at  work  on  garments  and  arti- 
cles of  food  while  suffering  from  contagious  diseases.2 

As  early  as  1885  New  York  sought  to  end  the  "sweating" 
or  tenement  workshop  system  by  prohibiting  the  manu- 
facture of  cigars  and  other  tobacco  products  in  tenement 


lSec  United  States  Bureau  of  Labor  Statistics,  Bulletin  No.  267, 
Anthrax  as  an  Occupational  Disease,"  John  B.  Andrews,  1920. 

1  See  Second  Report  of  the  New  York  State  Factory  Investigating  Com- 
mission, "Manufacturing  in  Tenements,"  Vol.  I,  pp.  90-123;  Report 
on  Condition  of  Woman  and  Child  Wage-Earners  in  the  United  States, 
Vol.  II,  "Men's  Ready-Made  Clothing." 


SAFETY  AND  HEALTH  367 

houses  in  cities  of  the  first  class.  The  law  was  declared  un- 
constitutional, the  court  holding  it  an  abuse  of  the  police 
power  and  an  infringement  of  the  cigar-maker's  liberties  in 
that  it  sought  to  force  him  "from  his  home  and  its  hallowed 
associations  and  beneficent  influences,  to  ply  his  trade  else- 
where." l  Had  this  pioneer  statute  been  sustained,  the  entire 
problem  of  tenement  house  labor  might  have  been  disposed  of 
almost  at  its  beginning. 

The  setback  in  the  Jacobs  case  radically  changed  the  method 
of  attack  on  the  sweating  system.  Prohibition  having  been 
declared  invalid,  for  three  decades  nearly  all  effort  was  di- 
rected toward  regulation  and  the  imposing  of  minor  restric- 
tions through  a  licensing  system.  In  1891  Massachusetts 
passed  "  An  act  to  prevent  the  manufacture  and  sale  of  cloth- 
ing made  in  unhealthy  places,"  and  the  following  year  New 
York  inserted  in  its  newly  codified  labor  law  a  provision  for 
the  licensing  and  regulation  of  tenement  workshops.  Similar 
provisions  exist  in  about  a  dozen  states.2 

These  statutes  ordinarily  require  that  home  work  on  gar- 
ments, foodstuffs,  and  tobacco  must  be  done  only  in  rooms 
licensed  by  the  factory  inspection  department.  Only  mem- 
bers of  the  immediate  family,  which  is  carefully  defined,  may 
be  employed,  and  licenses  may  be  issued  only  if  fire-escape, 
toilet,  and  all  other  health  and  safety  laws  have  been  com- 
plied with.  In  case  of  disease,  work  must  cease  until  the 
board  of  health  has  declared  the  illness  at  an  end  and  has 
fumigated  the  apartment.  A  register  must  be  kept  of  names 
and  addresses  of  persons  taking  out  work,  and  goods  given 
out  must  be  labeled  with  the  name  and  address  of  the  manu- 
facturer. Licenses  are  revokable  for  failure  to  comply  with 
the  law,  or,  in  some  of  the  newer  acts,  "if  the  health  of  the 
community  or  of  the  persons  employed  thereunder  requires  it."3 

The  results  of  attempted  regulation  under  even  the  best 
of  these  laws  have,  however,  never  been  satisfactory.  On 
July  i,  1917,  for  instance,  there  were  more  than  15,000  licensed 


1  In  re  Jacobs,  98  N.  Y.  98  (1885). 

2  In  1920:    Connecticut,  Illinois,  Indiana,  Maryland,  Massachusetts, 
Michigan,  Missouri,  New  Jersey,  New  York,  Ohio,  Pennsylvania,  and 
Wisconsin. 

3  See,  for  instance,  Maryland,  Laws  1914,  C.  779,  Sec.  248. 


368       PRINCIPLES  OF  LABOR  LEGISLATION 

tenements  in  New  York  City  alone,  and  over  700  in  the  rest 
of  the  state.  In  addition  to  these,  home  work  was  found 
going  on  in  more  than  9,000  homes  other  than  tenement 
houses,  over  which  the  law  gives  no  control  whatever.  As 
the  working  day  of  a  factory  inspector  is  eight  hours  long,  it 
has  been  computed  that  it  would  require  three  inspectors  to 
each  tenement  to  which  the  law  applies,  or  an  army  of  over 
45,000  in  all,  to  set  a  continuous  day  and  night  watch  upon 
these  dwellings  to  see  that  no  violations  of  the  law  were  going 
on;  and  this  estimate  takes  no  account  of  the  fact  that  home 
work  is  covertly  carried  on  in  unlicensed  as  well  as  in  licensed 
houses.  "After  twenty-one  years,"  declare  those  who  have 
long  been  sympathetic  observers  of  this  legislation,  "the 
difficulties  of  inspection  have  been  proved  insuperable."  l 

In  1913,  after  the  able  investigations  of  the  state  factory 
investigating  commission,  New  York  once  more  turned  tow- 
ard the  prohibitory  method  in  dealing  with  this  question, 
and  forbade  work  in  tenement  homes  on  food  products, 
dolls  or  dolls'  clothing,  and  children's  or  infants'  wearing-ap- 
parel.2 The  prohibition  covered  work  done  either  directly  for 
a  factory  or  indirectly  through  a  contractor,  and  was  applied 
to  these  articles  first  because  of  their  close  relation  to  public 
health,  especially  the  health  of  children.  There  is  little  doubt 
that  in  the  present  state  of  public  knowledge  these  restrictions 
will  be  followed  by  others.3 

(2)  Mines  and  Tunnels 

Underground  work  of  any  sort  obviously  subjects  the  work- 
man to  greater  dangers,  both  as  to  health  and  to  safety,  than 
do  most  of  the  manufacturing  industries.  Distance  beneath 
the  surface,  artificial  light,  poisonous  gases,  explosive  dusts, 
dampness,  intestinal  parasites,  extreme  heat,  and  in  some 

'  Constitutional  Amendments  Relating  to  Labor  Legislation  and  Brief 
v  i,  e  Defense>  submitted  to  the  Constitutional  Convention  of  New 

ork  State,  June  9,  1915,  by  a  committee  organized  by  the  American 
Association  for  Labor  Legislation,  p.  51. 

2  New  York,  Laws  1913.  C.  260. 

'  In  1920,  for  instance,  the  Women's  City  Club  and  the  City  Club  of 
w  York  united  in  furthering  a  bill  to  prohibit  in  tenement  living  rooms 
all  work  let  out  by  factories. 


SAFETY  AND  HEALTH  369 

kinds  of  work  abnormal  air  pressure  amounting  often  to  sev- 
eral atmospheres,  all  contribute  to  render  underground  occu- 
pations extraordinarily  hazardous.  It  is  for  this  reason  that 
the  validity  of  hour  legislation  for  adult  men  has  become 
thoroughly  established  in  the  mining  industry,  although  in 
many  other  lines  of  work  such  restrictions  are  still  subject 
to  attack  on  the  score  of  unconstitutional!  ty.1  - 

a.  Mining.  In  these  circumstances  it  is  not  surprising 
that  mining  furnishes  a  higher  fatal  accident  rate  than  any 
of  the  other  main  groups  of  industry.  Metal-mining  has  a 
higher  death-rate  than  coal-mining,  and  employment  in  an- 
thracite coal  mines  is  more  dangerous  than  in  bituminous 
mines,  since  the  former  are  deeper  and  more  subject  to  ac- 
cumulations of  noxious  and  explosive  gases. 

Coal-mining  appears  to  be  more  dangerous  in  America  than 
in  any  other  country.  Standing  second  with  regard  to  num- 
bers employed,  the  United  States  leads  all  other  important 
coal-producing  countries  both  in  total  number  and  in  rate 
of  fatal  accidents.  During  the  ten  years  ending  with  1910 
the  average  fatal  accident-rate  per  1,000  employed  in  coal- 
mining was  3.74  for  the  United  States,  2.92  for  Japan,  2.11  for 
Germany,  1.69  for  France,  1.36  for  Great  Britain,  1.04  for 
Austria,  and  1.02  for  Belgium.2 

Health  dangers  and  occupational  diseases  among  miners 
have  been  given  much  less  legislative  attention  than  has  the 
subject  of  accidents.  Accidents  are  usually  more  spectacular, 
their  causes  are  more  certain  and  more  easily  located,  and, 
moreover,  an  employer  may  be  held  in  damages  for  accidental 
injuries  to  mine  workmen,  while  only  a  few  American  states 
have  provided  compensation  for  occupational  diseases.3 
Among  the  more  important  legal  provisions  for  safeguarding 
the  life  and  health  of  miners  are  the  requirements  for  detailed 
maps  of  mines  showing  all  workings  and  open  at  all  times 
to  mine  inspectors,  for  a  sufficient  number  of  escapement 


1  See,  however,   discussion  of  this  point  under  "Maximum  Hours, 
Men,"  pp.  266,  267. 

2  United  States  Bureau  of  Mines,  Bulletin  No.  69,  "Coal-Mine  Acci- 
dents in  the  United  States  and  Foreign  Countries,"  Frederick  W.  Horton, 
p.  87. 

3  For  a  further  discussion  of  this  subject  see  Chapter  VIII,  "  Social 
Insurance," 


370       PRINCIPLES  OF  LABOR  LEGISLATION 

shafts,  for  proper  ventilation  and  a  supply  of  pure  air,  and 
frequently  for  a  special  employee  to  inspect  the  mine  daily 
for  explosive  or  poisonous  dusts  or  gases.  Precautions  against 
falling  rock  or  coal  must  also  be  taken  by  carefully  timbering 
dangerous  places  as  far  as  known.  Rules  are  laid  down  in 
regard  to  proper  methods  of  drilling  and  blasting,  and  hoist- 
ing-gears and  cages  for  carrying  men  in  and  out  of  the  mine 
must  conform  to  specific  requirements.  Safety-lamps,  shelter- 
holes,  fencing  of  machinery,  telephone  connections,  restrictions 
upon  the  storing  of  explosives  and  upon  the  quality  of  il- 
luminating oils — these  and  many  more  safeguards  are  fre- 
quently required  and  carefully  defined  by  law.  In  the  newer 
laws  provision  is  usually  made  for  a  rather  limited  first-aid 
equipment. 

The  enforcement  of  these  provisions  in  the  various  states 
is  usually  entrusted  to  a  special  body  of  mine  inspectors,  who 
either  form  a  separate  bureau  of  mine  inspection  or  are  at- 
tached to  the  state  department  of  industrial  inspection.  Mine 
inspection  protects  the  property  of  the  employer  as  well  as 
the  lives  of  the  employees,  and  many  states  require  of  in- 
spectors a  certain  number  of  years'  experience  and  also  civil- 
service  examinations  conducted  by  an  examining  board  fre- 
quently composed  of  representatives  of  employers  and  em- 
ployees. The  authority  of  the  inspectors  is  sometimes  far- 
reaching,  extending  even  to  the  power  of  stopping  work  if  the 
mine  regulations  have  not  been  obeyed.  The  best  results  in 
the  enforcement  of  mine  safety  and  health  legislation  have 
been  achieved  in  states  where,  as  in  Illinois,  joint  conferences 
of  miners  and  mine-owners  have  been  brought  together  for 
the  administration  as  well  as  the  drafting  of  the  laws. 

A  significant  step,  which  may  in  time  lead  to  national 
regulation  of  mining  conditions,  was  the  establishment  by  Con- 
gress in  1910  of  the  federal  Bureau  of  Mines  with  the  function, 
among  others,  of  conducting  "scientific  and  technologic  in- 
vestigations concerning  mining,"  with  a  view  to  improving 
health  conditions  and  increasing  safety  and  efficiency.  The 
bureau  has  no  authority  to  do  anything  except  conduct  in- 
vestigations, publish  reports,  and  furnish  advice,  all  enforce- 
ment of  mine  laws  being  left  in  the  control  of  the  states,  but 
within  its  limited  field  it  has  already  performed  valuable  ser- 


SAFETY  AND  HEALTH  371 

vices.  Series  of  bulletins  and  technical  papers  distributed  free 
to  miriers  present  the  results  of  the  latest  scientific  inquiries 
into  the  causes  and  prevention  of  mine  explosions  and  other 
accidents,  and  some  half-dozen  mine  rescue  stations  have 
been  established,  one  in  each  of  the  more  important  coal  fields 
of  the  country.  Connected  with  each  station  is  a  fully  equipped 
mine  rescue  car,  in  charge  of  a  mining  engineer  and  two  es- 
pecially trained  miners,  which  tours  the  district,  giving  prac- 
tical instruction  in  safety  work,  and  is  dispatched  at  once  to 
the  scene  of  any  disaster.  Previous  to  creating  this  bureau, 
Congress  had  enacted  a  code  for  the  regulation  of  mining  con- 
ditions in  the  federal  territories,  which  is  still  in  force  in 
Alaska  and  in  the  insular  possessions.1 

b.  Work  in  Compressed  Air.  An  industrial  hazard  brought 
into  prominence  by  the  increasing  construction  of  tunnels, 
subways,  bridges,  and  skyscrapers  is  compressed-air  illness, 
or  the  "bends."  An  investigator  for  the  Illinois  Commission 
on  Occupational  Diseases  secured  interviews  with  161  men 
who  had  sustained  attacks  of  the  malady,  and  the  medical 
director  at  the  construction  of  the  Pennsylvania-East  River 
tunnels  in  New  York  in  1909  reported  3,692  cases,  of  which 
twenty  were  fatal. 

In  1920  only  three  states,  New  York,  New  Jersey,  and  Penn- 
sylvania, had  attempted  to  control  the  disease  by  legislation, 
although  in  other  states  similar  steps  have  been  taken  through 
the  method  of  administrative  orders.2  The  customary  pro- 
visions include  physical  examinations  of  all  applicants  for  work 
and  of  all  employees  at  stated  intervals,  a  sliding  scale  of 
working  hours,  decreasing  as  the  pressure  increases,3  and  a 
period  of  gradual  "decompression,"  ranging  from  one  minute 
for  emergence  from  a  pressure  of  ten  pounds  above  normal  to 
twenty-five  minutes  for  emergence  from  a  pressure  of  fifty 
pounds  above  normal.  Work  under  more  than  fifty  pounds' 
pressure  is  forbidden.  The  employer  must  maintain  dressing- 
rooms  with  lockers,  hot  and  cold  shower-baths,  and  provision 
for  drying  clothes.  Medical  attendants  are  also  required,  as 
well  as  a  hospital  lock  for  the  recompression  and  treatment  of 
sufferers  from  the  disease. 


1  United  States,  Laws  1890-1891,  C.  564.  2See  p.  381. 

3  See  "Hours  of  Labor,  Men,"  p.  260. 


372       PRINCIPLES  OP  LABOR  LEGISLATION 

(j)  Transportation 

Protective  legislation  regulating  working  conditions  in 
transportation  relates  mainly  to  safety.  The  development 
of  aerial  transportation  had  in  1920  led  to  no  labor  laws  ex- 
cept the  Connecticut  provision  that  aeronauts  be  licensed  1 
and  a  Pennsylvania  clause  that  they  be  over  eighteen  years  of 
age,2  but  in  carriage  by  land  and  water  a  large  body  of  statutes 
has  gradually  grown  up.  These  measures  may  either  be  de- 
signed for  the  protection  of  employees,  as  in  the  case  of  auto- 
matic couplers  on  railroads,  and  the  provision  for  emergency 
exits  for  seamen,  or  they  may  be  intended  primarily  for  the 
protection  of  the  traveling  public,  as  in  the  case  of  boiler 
inspection  in  both  kinds  of  transportation.  A  few  measures 
such  as  the  full-crew  laws  on  railroads  and  in  navigation  have 
been  urged  as  a  direct  protection  for  both  laborers  and  travelers. 

The  majority  of  transportation  employees  are  engaged  in 
traffic  which  is  interstate  or  international  in  character.  The 
more  important  legislation  affecting  this  class  of  workmen  has 
therefore  been  federal  rather  than  state.  Railway  employees 
have  been  more  often  brought  under  state  laws  than  have 
seamen,  but  when  any  question  has  arisen  over  the  respective 
jurisdiction  of  state  or  federal  authority  the  latter  has  prac- 
tically always  been  given  precedence  by  the  courts. 

a.  Navigation.  While  slavery  and  serfdom  have  been 
abolished  for  the  majority  of  workmen  in  most  civilized 
countries,  until  1915  the  seaman  in  America  was  kept  in 
a  position  of  semi-slavery  through  employment  under  a  con- 
tract enforceable  by  imprisonment.  This  position  of  invol- 
untary servitude  gave  him  but  little  effective  voice  in  regulat- 
ing the  conditions  under  which  he  worked.  In  the  early  days 
of  sea  travel  a  ship-owner's  interest  impelled  him  to  secure 
an  intelligent  and  competent  crew  which  could  protect  his 
cargo.  But  with  the  substitution  of  steam  for  sails,  the 
spread  of  lighthouses  and  channel  markings,  and  the  growth  of 
marine  insurance  and  limited  liability  legislation,  the  quality 
of  seamanship  had  greatly  declined.  In  the  majority  of  serious 
sea  disasters  in  recent  years  the  lack  of  both  skill  and  numbers 

1  See  "Technical  Qualifications,"  p.  352. 

1  In  the  child  labor  code,  Pennsylvania,  Laws  1915,  No.  177,  Sec.  5. 


SAFETY  AND  HEALTH  373 

in  the  working  force  has  been  officially  reported.  There  had 
apparently  been  a  steady  increase  in  the  size  of  the  load  carried, 
without  a  corresponding  increase  in  the  number  and  skill  of 
those  employed  to  handle  it.  The  "seaman"  had  been  dis-. 
placed  by  the  " deck-hand,"  the  American  by  the  northern 
European,  and  the  latter  by  the  immigrant  of  the  southern 
races. 

In  a  few  states  legislation  looking  toward  general  marine 
safety  has  been  enacted,  such  as  provisions  for  boiler  inspec-' 
tion  and  signal  lights,  but  most  of  the  legislation  affecting 
seamen  has  been  federal.  As  early  as  1798  Congress  recog- 
nized the  need  of  special  protection  for  this  class  of  work- 
men, many  of  whom  are  single  and  homeless.  In  that  year 
the  federal  government  established  a  marine-hospital  fund  to 
maintain  hospitals  for  the  care  of  disabled  seamen  of  ships 
belonging  to  the  United  States.  'During  the  latter  half  of 
the  nineteenth  century  Congress  continued  its  protective 
policy  toward  seamen  by  legislation,  regulating,  among  other 
matters,  the  conditions  of  living  and  working  on  shipboard, 
the  size  and  experience  of  crews,  and  the  construction  and  in-, 
spection  of  vessels.  But  despite  these  regulations  the  position 
of  seamen  was  held  to  be  most  unsatisfactory,  and  it  was  not 
until  the  passage  of  the  federal  seamen's  act  of  1915  that  the 
grosser  injustices  were  removed.1 

While  the  outstanding  features  of  this  act  related  rather  to 
the  personal  freedom  of  seamen,2  additional  provisions  were 
made  for  the  health  and  comfort  of  employees  through  the 
requirement  of  proper  washing-places  and  sleeping-rooms, 
hospital  space,  fumigation,  heating,  lighting,  ventilation,  and 
drainage. 

It  has  been  repeatedly  pointed  out  that  in  case  of  accidents 
at  sea,  such  as  fires  or  boiler  explosions,  a  ship  cannot  sum- 
mon assistance  as  a  manufacturing  establishment,  for  in- 
stance, is  able  to  do  on  land,  but  must  rely  upon  its  own  crew 
and  the  chance  aid  of  near-by  vessels.  For  this  reason  the 
only  way  really  to  safeguard  human  life  at  sea  is  to  provide 
an  equipment  and  crew  adequate  to  meet  any  reasonable 
emergency.  The  seamen's  act  of  1915,  therefore,  provided 

1  United  States,  Laws  1914-1915,  C.  153. 

2  See  "Contract  Labor,"  pp.  44,  45. 


374       PRINCIPLES  OF  LABOR  LEGISLATION 

for  a  substantial  increase  in  the  size  of  the  crews  employed, 
for  a  certain  percentage  of  able  seamen,  for  "certified  life- 
boat men,"  and  for  properly  constructed  life-boats,  the  num- 
ber to  be  fixed  according  to  the  size  and  character  of  the  ship 
and  its  cargo. 

b.  Railroads  and  Street-cars.  In  the  early  days  of  railroad- 
ing, reports  of  deaths  and  mutilations,  particularly  in  connec- 
tion with  the  coupling  of  cars,  were  repeatedly  made  public, 
and  the  need  of  protective  legislation  became  apparent,  espe- 
cially as  the  length  and  complexity  of  lines  developed  and  as 
speed  increased.  At  the  middle  of  the  nineteenth  century 
only  about  9,000  miles  of  railroad  existed.  In  1869  a  through 
route  to  California  was  opened,  and  by  1880  the  total  mileage 
had  increased  to  86,000.  Between  1880  and  1890  more  miles 
of  new  road  were  built  than  during  the  entire  period  previous 
to  1875,  and  in  the  early  'eighties  a  few  states  enacted  protec- 
tive legislation.  It  soon  became  apparent,  however,  that  state 
legislation  alone  would  result  in  long  delays  and  in  a  great 
lack  of  uniformity.  As  the  occurrence  of  serious  accidents 
continued  and  as  interstate  commerce  developed,  the  need 
of  federal  regulation  became  more  apparent. 

Many  experiments  were  carried  on  in  search  of  proper 
safety  devices,  and  as  early  as  1868  a  successful  application 
of  air-brakes  was  made.  But  the  most  serious  danger  to 
employees  resulted  from  their  being  required  to  go  between 
cars  in  order  to  couple  or  uncouple  them.  It  was  not  until  1887 
that  a  satisfactory  automatic  coupler  was  devised  for  general 
use.  In  order  to  compel  the  general  adoption  of  the  standard 
coupler  the  necessity  of  federal  legislation  was  recognized. 

Although  the  Interstate  Commerce  Commission,  created 
by  the  federal  act  of  February  4,  1887,  had  power  to  investi- 
gate and  to  regulate  rates,  the  act  made  no  mention  of  safety 
appliances  or  the  protection  of  employees.  The  absence  of 
authority  over  these  matters  was  remedied  by  the  federal 
act  of  March  2,  1893,  and  several  subsequent  acts1  made 
it  obligatory  upon  all  roads  engaged  in  interstate  traffic  to 
equip  all  cars  and  locomotives  with  approved  automatic 
couplers,  and  to  provide  other  safeguards  such  as  power- 

United  States,  Laws  1892-1893,  C.  196;  Laws  1902-1903,  C.  976; 
Laws  1906-1907,  C.  225. 


SAFETY  AND  HEALTH  375 

brakes  and  grab-irons.1  In  this  particular,  American  labor 
legislation  was  far  in  advance  of  European.  The  results  of  the 
coupler  legislation  are  particularly  striking.  In  1890,  when 
only  about  10  per  cent,  of  railway  cars  were  equipped  with 
automatic  couplers,  accidents  in  the  coupling  of  cars  amounted 
to  nearly  half  of  all  casualties  to  trainmen.  By  1912,  when 
over  99  per  cent,  of  all  cars  were  so  equipped,  the  proportion 
of  accidents  from  this  cause  was  reduced  to  about  8  per  cent. 
The  majority  of  early  regulations  imposed  by  the  federal 
government,  however,  left  open  to  the  various  roads  the  de- 
termination of  the  kind  and  character  of  devices  to  be  in- 
stalled. The  absence  of  a  central  standardizing  authority 
resulted  in  lack  of  uniformity,  and  at  times  in  the  adoption 
of  inadequate  or  ineffective  devices.  In  1910,  therefore,  an 
act  of  Congress,  in  addition  to  making  new  safety  provisions, 
gave  to  the  Interstate  Commerce  Commission  power,  after 
proper  hearings,  to  "designate  the  number,  dimensions,  loca- 
tion, and  manner  of  application  of  the  appliances,"  and  there- 
after such  determinations  were  to  remain  as  "the  standards 
of  equipment,"  and  any  failure  to  comply  with  any  require- 
ment of  the  commission  was  subject  to  a  "like  penalty  as 
failure  to  comply  with  any  requirement  of  this  act."  2  At 
the  same  session  of  Congress  the  commission  was  given  au- 
thority to  investigate  all  collisions,  derailments,  or  other 
accidents,  to  subpoena  witnesses,  administer  oaths,  take  testi- 
mony, and  to  require  the  production  of  all  papers,  books,  and 
other  evidence.  It  might  also  make  a  public  report  "together 
with  such  recommendations  as  it  deems  proper."  One  year 
later  $25,000  was  appropriated  for  the  use  of  the  commission 
in  making  tests  and  establishing  standards  3  and  a  maximum 
of  $300,000  a  year  was  appropriated  to  provide  for  proper 
boiler  inspection  by  a  staff  of  fifty-three  inspectors  working 
in  close  cooperation  with  the  commission.4 

1  For  the  further  protection  of  employees  and  as  a  stimulus  to  the 
roads  to  use  every  possible  safety  precaution  Congress  also  provided  that 
no  employee  injured  on  a  train  not  equipped  according  to  law  could  be 
held  to  have  assumed  the  risk  of  his  employment  even  though  he  knew  of 
the  violations.     This  provision  has  been  upheld  in  the  North  Carolina 
case  of  Greenlee  v.  Southern  R.  Co.,  122  N.  C.  977,  30  S.  £.115  (1898). 

2  United  States,  Laws  1909-1910,  C.  160. 
'United  States,  Laws  1910-1911,  C.  285. 
4  United  States,  Laws  1910-1911,  C.  103. 


376       PRINCIPLES  OF  LABOR  LEGISLATION 

Beginning  with  the  great  increase  in  railroad  mileage  in  the 
early  'eighties,  state  legislation  grew  in  volume  and  developed 
along  two  lines,  one  mainly  for  the  protection  of  employees, 
and  the  other  mainly  for  the  protection  of  the  traveling 
public.  Measures  for  the  protection  of  travelers  are  of  two 
kinds.  The  first  relates  to  mechanical  devices  for  the  pre- 
vention of  accidents,  such  as  automatic  bell-ringers,  brakes, 
headlights,  and  signal  lights,  while  the  second  relates  to  the 
qualifications  and  training  of  employees. 

Among  the  measures  which  have  been  passed  primarily 
for  the  protection  of  employees  are  found  such  requirements 
as  those  for  the  installation  of  grab-irons,  ladders,  running- 
boards,  storm  windows  in  engines,  the  maintenance  of  a 
proper  temperature  in  mail  or  baggage  cars,  the  regulation  of 
the  height  of  bridges  or  other  overhead  structures,  the  main- 
tenance of  a  proper  clearance  around  tracks,  particularly  in 
railroad  yards,  the  blocking  of  frogs  and  switches,  and,  for 
employees  engaged  in  repairing  tracks,  the  erection  of  sheds 
to  protect  them  from  inclement  weather.  For  the  safety  and 
convenience  of  employees  who  are  frequently  required  to 
travel  long  distances  on  freight  or  stock  trains  caboose-cars 
must  be  provided,  which  must  be  constructed  according  to 
certain  rules  of  size,  strength,  safety,  and  comfort. 

Employees  on  street  or  interurban  railways  are  also  fre- 
quently protected  through  state  legislation  or  municipal 
ordinance.  Such  measures  relate  usually  to  inclosed  vesti- 
bules during  the  winter  months,  seats  for  motormen,  and 
proper  automatic  brakes,  and  occasionally  to  equipment  for 
the  sanding  of  rails,  to  the  examination  of  employees,  and  to 
minimum  age  limits. 

During  the  past  few  years  the  sharpest  debate  in  matters 
of  railway  safety  legislation  has  centered  about  the  full- 
crew  laws,  which  are  held  to  protect  both  the  public  and  the 
employee.  More  than  twenty  states  have  enacted  such 
legislation.  These  acts  usually  apply  to  both  passenger  and 
freight  service  on  roads  of  given  lengths,  and  fix  the  number 
of  employees— principally  of  brakemen — in  proportion  to  the 
number  and  kind  of  cars  in  the  train.  Full-crew  laws  have 
been  initiated  by  the  railway  men's  organizations  and  have 
been  vigorously  opposed  by  the  railroad  owners,  who  have 


SAFETY  AND  HEALTH  377 

contended  that  as  a  rule  larger  crews  are  unnecessary  because 
of  the  reduction  in  the  amount  of  work  required  of  employees 
since  the  introduction  of  safety  devices,  the  formation  of 
special  switching  crews,  and  the  generally  improved  methods 
of  handling  trains.  They  point  also  to  the  increase  in  operat- 
ing cost,  resulting  in  reduced  dividends  and  in  curtailment  of 
improvements. l 

On  the  other  hand,  the  trainmen  point  to  the  large  number 
of  both  fatal  and  non-fatal  accidents,  and  to  the  increasing 
strain  upon  railway  employees  due  to  the  increase  in  the 
weight  of  trains,  in  the  number  of  tons  per  train,  and  in  the 
number  of  cars  per  man.  They  hold  that  by  these  increases 
the  railroads  have  made  their  greatest  economies.  The  train- 
men maintain,  therefore,  that  full-crew  legislation  serves  prac- 
tically the  same  purpose  as  legislation  restricting  hours  of 
labor,  in  that  both  reduce  the  physical  strain  and  thereby 
the  frequency  of  accidents. 

This  is  the  view  which  was  adopted  by  the  Supreme  Court 
of  Pennsylvania  when  in  1913  2  it  upheld  the  full-crew  law 
of  that  state,  enacted  in  19 n,3  as  having  a  real  and  sub- 
stantial relation  to  the  safety  of  passengers  and  employees 
on  railroad  trains.  The  company  presented  evidence  as  to 
the  cost  of  the  legislation,  but  the  court  held  that  "Uncom- 
pensated  obedience  to  a  regulation  enacted  for  the  public  wel- 
fare or  safety  under  the  police  power  of  the  state  is  not  taking 
property  without  due  compensation,  and  any  injury  sustained 
in  obeying  such  a  regulation  is  but  damnum  absque  injuria."  4 

During  the  year  1915  bills  were  introduced  in  a  number 
of  states  fixing  the  maximum  length  of  trains.  This  legislation 
is  also  strongly  opposed  by  the  railroads,  on  the  ground  that 

1  For  a  full  discussion  of  this  subject  see  bulletin  Consecutive  No.  73 
of  the  Bureau  of  Railway  Economics,  Washington,  D.  C.,  "Arguments 
for  and  against  Train-Crew  Legislation,"  1915. 

2  Pennsylvania  R.  Co.  v.  Ewing  et  al.,  241  Pa.  581,  88  Atl.  775  (1913). 
A  similar  decision  was  rendered  in  Chicago,  Rock  Island  and  Pacific 
R.  Co.  v.  Arkansas,  219  U.  S.  453,  31  Sup.  Ct.  275  (1911),  upholding  the 
1907  law  in  that  state. 

3  Pennsylvania,  Laws  1911,  No.  811. 

4  In  1914  the  railroad  companies  succeeded  in  repealing  by  a  referendum 
vote  the  Missouri  full-crew  law  of  1913;    and  in  Pennsylvania  they  in- 
duced the  1915  legislature  to  pass  a  repealing  act,  which,  however,  was 
vetoed  by  the  governor. 


378       PRINCIPLES  OF^  LABOR  LEGISLATION 

they  have  expended  large  sums  of  money  for  improved  road- 
beds, yard  and  switching  facilities,  and  for  increased  tractive 
power  of  locomotives,  which  will  be  rendered  useless  if  they 
are  not  allowed  to  increase  the  length  and  weight  of  their 
trains. 

State  provisions  for  railroad  safety  have  frequently  been 
contested  on  the  ground  that  regulations  which  apply  to  inter- 
state commerce  are  a  subject  for  federal  legislation.  But  the 
courts  have  uniformly  held  that  where  Congress  has  not  legis- 
lated upon  these  questions  the  states  were  entirely  within  their 
rights.  An  interstate  road,  therefore,  might  either  make  such 
changes  as  were  necessary,  as  it  passed  from  one  common- 
wealth to  another,  to  meet  the  minimum  requirements  of  each 
commonwealth,  or  it  might  comply  everywhere  with  the 
maximum  provision  found  in  any  of  the  states  through  which 
it  passed. 

Although  much  of  the  protective  railroad  legislation  is 
mainly  for  the  benefit  of  employees,  it  is  recognized  that  the 
safety  of  the  public  depends  in  large  part  upon  the  safety 
of  those  who  are  entrusted  with  the  care  and  management  of 
trains.  It  is  this  aspect  of  the  matter  which  has  largely  in- 
fluenced the  courts  in  rendering  favorable  decisions  on  safety 
and  health  laws  for  railway  employees. 

The  enforcement  of  protective  regulations  in  relation  to 
railway  labor  has  in  the  majority  of  states  been  entrusted  to 
railway  or  public  utility  commissions  created  primarily  to 
supervise  or  regulate  rates.  In  this  class  of  legislation,  as  in 
the  regulation  of  conditions  in  factories,  workshops,  and 
mines,  it  has  been  found  impracticable  to  embody  in  the 
statute  law  specifications  which  will  be  effective  under  diverse 
and  constantly  changing  conditions.  For  this  reason  many 
legislatures  have  delegated  to  the  railroad  commissions  power 
to  work  out  details  of  provisions  and  to  prescribe  safety  rules 
and  regulations.  This  method  of  protection  has  repeatedly 
been  sustained  by  the  courts.  In  1913  the  law  creating  the 
Railroad  Commission  of  Indiana,  and  an  early  ruling  of  the 
commission  fixing  a  1,500  candle-power  standard  for  locomotive 
headlights,  were  both  attacked  as  unconstitutional.  The  case 
was  carried  to  the  supreme  court  of  the  state,  which  upheld 
the  delegation  of  legislative  powers,  declaring  that  "The  de- 


SAFETY  AND  HEALTH  379 

cisions  of  this  court  and  the  courts  of  other  states  in  this 
regard  are  clearly  against  the  appellant's  contention."  l  Sub- 
sequent appeal  to  the  United  States  Supreme  Court  also  re- 
sulted in  the  statute's  being  upheld.2 


4.  DEVELOPMENT  OP  STANDARDS 

A  careful  study  of  the  early  laws  to  preserve  industrial 
safety  and  health,  as  passed  by  Congress  and  by  the  legis- 
latures of  the  fifty  American  states  and  territories,  discloses 
at  once  four  fundamental  defects. 


(z)  Defects  of  Early  Legislation 

First  among  these  defects  is  the  incompleteness  of  these  laws. 
It  was  long  the  custom  of  legislatures  to  specify  in  the  law 
the  industries  and  danger-points  which  were  to  be  safeguarded, 
and  to  confine  the  inspectors'  authority  to  the  places  and 
conditions  mentioned.  Under  this  method  many  industrial 
danger-points  were  overlooked.  Perhaps  ' '  buzz-saw  "  or  ' '  dan- 
gerous dusts"  or  "foundry"  was  omitted  from  the  law,  in- 
advertently or  otherwise.  Although  often  fraught  with  harm 
to  the  worker,  these  unmentioned  points  were  outside  the 
authority  of  the  inspection  officials,  and  the  workers  received 
no  protection  until  the  law  could  be  changed.  Frequently, 
too,  a  qualifying  phrase  greatly  limited  the  operation  of  a 
good  law.  For  example,  the  law  in  one  state  required  poison- 
ous fumes  generated  "in  the  course  of  the  manufacturing 
process"  to  be  removed.  While  varnishing  the  interior  of 
vats  in  a  brewery  two  men  died  and  one  was  totally  blinded 
for  life,  due  to  inhaling  the  poisonous  fumes  of  wood  alcohol 
used  in  the  varnish.  But  because  varnishing  vats  is  in  the 
nature  of  repair- work  and  does  not  come  ' '  in  the  course  of  the 
manufacturing  process,"  the  inspectors  could  not  legally 
remedy  the  dangerous  situation.  It  was  necessary  to  wait  an 

1  Vandalia  R.  Co.  v.  Railroad  Commission  of  Indiana,  182  Ind.  382, 
101  N.  E.  85  (1913).     For  a  clear  opinion  on  the  delegation  of  legislative 
authority  see  Minneapolis,  St.  Paul  and  Sault  Ste.  Marie  R.  Co.  v.  Rail- 
road Commission  of  Wisconsin,  136  Wis.  146,  116  N.  W.  905  (1908). 

2  Vandalia  R.  Co.  v.  Public  Service  Commission  of  Indiana,  242  U.  S. 
255,  37  Sup.  Ct.  93  (1916). 


380       PRINCIPLES  OF  LABOR  LEGISLATION 

entire  year  (in  most  states  it  would  have  been  two  years) 
before  the  legislature  convened  and  the  law  could  be  amended. 
These  illustrations  indicate  a  common  weakness  of  early 
safety  and  health  laws  in  many  states. 

The  second  fundamental  defect  is  the  absence  of  direct  re- 
sponsibility. Many  laws  placed  no  obligation  whatever  upon 
an  employer  to  safeguard  danger-points  nor  upon  the  em- 
ployee to  aid  in  maintaining  safety  except  "in  the  discretion 
of  the  commissioner  of  labor,"  or  unless  "the  commissioner 
so  directs,"  or  "if  in  the  opinion  of  the  commissioner  of  labor 
it  is  necessary."  This  type  of  legislation  placed  no  duty  upon 
the  employer  to  provide  nor  upon  the  employee  to  maintain 
proper  protection  until  required  to  do  so  by  the  inspector. 
No  protective  devices  had  to  be  provided  until  the  inspector 
called  and  ordered  them  installed.  Scarcely  a  state  but  has 
had  laws  of  this  character. 

The  third  fundamental  defect  is  the  absence  of  well-defined 
standards.  The  old  theory  of  factory  inspection  legislation 
assumed  that  the  legislatures,  often  made  up  largely  of  lawyers 
and  farmers,  would  define  in  the  law  the  exact  nature  of  pro- 
tection to  be  provided  in  factory,  workshop,  or  mine.  But  be- 
cause of  inadequate  information,  and  possibly  also  because  of 
fear  of  adverse  court  decisions,  our  lawmakers  vaguely  re- 
quired merely  that  dangerous  machinery  be  "  sufficiently  guard- 
ed," usually  "where  practicable,"  and  left  it  to  the  poorly 
trained  and  poorly  paid  inspector  to  enforce  these  indefinite 
laws,  usually  "in  his  discretion."  This  discretionary  power, 
when  placed  in  the  hands  of  uninformed  officials,  brought  this 
method  of  lawmaking  into  disrepute  among  employers,  em- 
ployees, and  the  public. 

The  fourth  fundamental  defect  is  the  lack  of  responsiveness 
to  changing  industrial  conditions.  When  it  had  become  ap- 
parent that  many  of  the  early  laws  were  failing  of  their  pur- 
pose because  of  the  foregoing  blemishes,  there  followed  a 
comparatively  brief  period  during  which  efforts  were  made 
to  frame  comprehensive,  scientific  provisions,  free  from 
"jokers"  and  loopholes,  and  to  secure  their  passage  by  the 
legislatures.  Perhaps  the  most  noteworthy  example  of  such 
legislation  was  the  standard  law  enacted  in  several  states 
providing  for  the  protection  of  workers  in  the  lead  trades. 


SAFETY  AND  HEALTH  381 

In  this  instance,  after  careful  investigation  by  the  federal 
government  supplemented  by  private  studies  and  many  con- 
ferences, a  very  specific  bill  was  drafted  to  apply  to  the  various 
processes  in  the  manufacture  of  lead  salts,  and  the  resulting 
legislation  served  a  very  useful  educational  purpose.  In  a 
few  states  also  the  laws  undoubtedly  hastened  the  efforts  of 
employers  to  make  their  work-places  sanitary.  But  it  was 
found  that  some  specific  safeguards  minutely  prescribed  in 
the  statutes  were  very  quickly  out  of  date.  In  order  that 
they  might  be  superseded  by  improved  devices  or  methods 
there  was  once  more  required  the  slow  and  expensive  action 
of  legislatures,  which  in  most  states  might  not  be  in  session 
again  for  more  than  an  entire  year.  The  impracticability  of 
embodying  in  statute  law  specific  danger-points  and  specific 
remedies  became  clear. 


(2)  The  Method  of  Administrative  Orders 

Legislators  themselves  began  to  recognize  the  futility  of 
attempting  to  formulate  in  the  short  and  busy  sessions,  con- 
vening in  most  states  only  once  in  two  years,  proper  protective 
measures.  They  saw  that  the  proper  persons  to  accomplish 
this  work  efficiently  were  those  who  had  an  opportunity  to 
familiarize  themselves  with  changing  industrial  conditions. 
Therefore,  in-several  states,  legislators  decided  that  they  would 
no  longer  attempt  to  enact  laws  specifying  in  detail  what  shall 
be  done,  but  instead  would  ask  that  work-places  be  made 
safe.  To  carry  out  the  will  of  the  legislature  they  provided 
a  commission  to  work  out  with  employers  and  employees  the 
best  possible  methods  of  protection.  After  public  hearings, 
the  methods  agreed  upon  were  issued  by  the  commission  in 
the  form  of  administrative  orders  or  regulations  to  apply 
state  wide  and  to  have  the  force  of  law.  Here  we  find  the 
very  foundation  of  effective  safety  inspection  work.  The 
key-note  is  cooperation.  The  experience  of  the  worker,  the 
knowledge  of  the  employer,  and  the  critical  constructive  ability 
of  the  expert  are  all  needed  in  the  formation  of  effective  stand- 
ards of  health  and  safety  and  in  the  enforcement  of  these 
standards. 

This  new  method  of  regulating  industrial  conditions  through 


382       PRINCIPLES  OF  LABOR  LEGISLATION 

administrative  orders  cooperatively  formulated  and  issued  by 
a  permanent  commission,  has  resulted  in  several  states  in  a  pro- 
gressive and  accurate  adjustment  of  factory  inspection  to  the 
changing  methods  and  new  risks  that  accompany  modern  in- 
dustry. Concerning  this  method  a  former  chief  factory  in- 
spector has  said:  "As  a  state  inspector,  my  experience  has 
demonstrated  that  the  arbitrary  imposition  of  rules  of  law  will 
not,  in  itself,  produce  satisfactory  standards  for  the  safety  and 

health  of  employees  in  factories,  mills,  and  workshops The 

observations  which  I  have  made  emphasize  the  importance  of 
cooperation  and  of  education  of  both  parties  to  the  labor 
contract  as  to  what  are  ideal  factory  conditions.  This  co- 
operation must  be  brought  about  if  substantial  results  with 
reference  to  safety  standards  are  to  be  obtained  through  state 
inspection."  Fortunately  scientific  accident  prevention  has 
recently  been  brought  into  the  foreground  by  the  adoption 
of  workmen's  compensation  acts,  and  it  has  quickened  the 
movement  for  reorganization  of  administrative  boards  in 
many  states. 

No  longer  is  it  necessary  in  states  like  New  York,  Ohio,  and 
Wisconsin,  for  example,  to  wait  one  or  two  long  years  for  a 
session  of  the  legislature  in  order  to  submit  proposals  for  the 
proper  protection  of  the  workers.  No  longer  need  specific 
rigid  provisions  be  drafted  into  bills  and  thrust  upon  the 
bewildered  attention  of  the  legislators  while  temporarily  in 
session  at  the  state  capitol.  The  legislature  has  laid  down 
the  law  in  a  broad  way;  the  industrial  commission,  as  rapidly 
as  circumstances  permit,  may  fill  in  the  administrative  detail. 
Under  this  new  system  the  industry  itself  makes  the  laws  for 
its  own  shop  government.  Employers  and  employees,  with 
the  aid  of  impartial  experts,  are  learning  through  self-expres- 
sion the  importance  and  the  practicability  of  the  now  popular 
motto,  "Safety  first."  The  prevention  of  industrial  accidents 
and  diseases,  particularly  when  accompanied  by  social  in- 
surance, is  becoming  a  matter  of  enlightened  selfishness;  the 
general  and  the  specific  statutory  requirements  of  former 
years  are  being  supplanted  by  scientific  standards  developed 
through  administrative  orders  based  on  continuing  investiga- 
tions.^ 

1  See  Chapter  IX,  "Administration." 


CHAPTER  VIII 
SOCIAL  INSURANCE 

For  most  of  the  economic  hazards  of  life  there  has  been 
developed  an  appropriate  method  for  the  distribution  of  losses 
and  the  subsequent  elimination  of  risks.  Marine  insurance, 
for  the  financial  protection  of  those  who  send  their  goods  down 
to  the  sea  in  ships,  was  the  first  to  be  developed  on  an  exten- 
sive basis.  Insurance  against  loss  by  fire  is  now  a  regularly 
accepted  precaution  in  every  community.  By  this  common 
method  of  insuring  against  loss,  each  individual  in  the  or- 
ganized group  is  assured  that  in  case  of  the  destruction  or 
damage  of  his  property  he  will  be  reimbursed  from  a  fund 
contributed  little  by  little  by  the  whole  group.  Insurance, 
accordingly,  has  been  defined  as  an  arrangement  for  distribu- 
tion among  many  of  the  losses  sustained  by  a  few. 

By  this  thin-spreading  of  individual  losses  over  a  large 
group,  the  man  receiving  an  income  from  property  destroyed 
by  shipwreck  or  by  fire  is  in  a  position  to  reinvest.  Even 
more  necessary  than  for  the  property-owner  is  insurance  for 
the  workingman,  whose  ability  to  labor  is  his  only  asset  and 
who  is  peculiarly  liable  to  be  deprived  of  l^^fl|^nc.  When 
the  laborer,  no  matter  how  efficient  he  may  iM  H  as  a  result 
of  either  individual  or  collective  bargaining  t^HHd  a  job  for 
himself  even  if  at  a  wage  and  under  hour  lirnitanoifc  which  are 
temporarily  acceptable,  his  economic  position  is  still  .pre- 
carious. He  and  his  family  are  still  face  to  face  with  excep- 
tional economic  risks,  including  the  suffering  and  want  fol- 
lowing accident,  illness,  invalidity  or  premature  old  age, 
normal  old  age,  premature  death,  and  unemployment. 

Peculiarly  necessary,  therefore,  is  this  common  arrangement 
for  group  or  social  action  known  as  insurance,  when  those  who 
suffer  the  losses  are  workingmen  solely  dependent  for  support 


384       PRINCIPLES  OF  LABOR  LEGISLATION 

upon  their  ability  to  labor.  Such  insurance  may  be  developed 
by  the  initiative  of  individuals  wishing  to  insure,  or  it  may  be 
developed  through  legislation.  When  such  insurance  pro- 
vision is  made  through  legislation,  it  marks  the  adoption  by 
society  of  a  settled  policy  of  cooperative  action  to  distribute 
among  a  group  the  losses  suffered  by  individuals  due  to  their 
inability  to  work  and  thereby  earn  a  livelihood.  It  is  there- 
fore natural  to  term  this  insurance  social  insurance. 

While  savings  are  sometimes  urged  as  an  alternative  to 
workmen's  social  insurance,  it  is  as  true  for  the  wage-earner 
as  for  the  merchant,  that  the  provision  by  each  person  of  a 
reserve  sufficient  to  meet  the  possible  maximum  loss  is  ex- 
travagant, requiring  as  it  does  that  each  person  shall  be  able 
to  meet  from  his  individual  savings  the  hazard  which  will 
fall  upon  only  a  small  number.  Far  more  economical  is  the 
institution  of  insurance  whereby  the  individual  sets  aside  only 
enough  to  meet  the  average  loss  when  distributed  throughout 
the  group. 

The  most  substantial  reason  why  wage-earners  do  not 
voluntarily  insure  themselves  against  the  risks  of  accident  and 
illness,  invalidity  and  old  age,  early  death  and  unemploy- 
ment, is  insufficient  income.  Reliable  information  from  con- 
servative private  and  public  reports  amply  confirms  the 
statement  that  the  average  wage-earner  with  a  family  is  not 
receiving  pay  for  his  labor  sufficient  "to  secure  the  elements 
of  a  normal  standard  of  living."  1  It  is  unreasonable  to  ex- 
pect such  wage-earners  to  provide  against  a  possible  future 
contingency  at  the  sacrifice  of  present  necessaries. 

A  further^B^pn  for  the  failure  of  the  underpaid  masses  to 
insure  thei«  Bs  is  indifference  or  lack  of  foresight  concern- 
ing the  proSHs  of  the  future.  Although  thrift  in  the  pres- 
ence of  subnormal  living  occasioned  by  low  wages  may  at 
times  become  a  positive  social  vice,  provision  for  the  future 
is  on  the  whole  necessary  and  beneficial.  Furthermore,  it 
is  recognized  that  for  millions  of  laborers  saving  will  take 
place  only  under  a  distinct  incentive.  This  "  enforced  saving  " 
against  the  inevitable  rainy  day  in  the  life  of  the  workingman 
is  most  effectively  brought  about  through  the  periodical  col- 

1  See  Chapter  IV,  "The  Minimum  Wage." 


SOCIAL  INSURANCE  385 

lection  of  dues  or  premiums  for  the  support  of  the  various 
forms  of  social  insurance.  Moreover,  it  has  been  discovered 
that  community  of  interest  in  directly  bearing  the  financial 
cost  of  insurance  furnishes  a  kind  of  cooperative  pressure  on 
employers  l  which  can  be  utilized  effectively  in  the  elimination 
of  risks  in  so  far  as  they  are  preventable.  The  rapid  develop- 
ment of  the  " Safety  first"  movement  which  followed  closely 
the  enactment  of  workmen's  compensation  laws  is  sufficient, 
evidence  of  the  preventive  power  of  social  insurance. 

There  is  a  growing  recognition,  also,  that  industry  is  a 
contributing  factor  to  the  hazards  of  life  among  wage-earners. 
For  example,  industry  is  responsible  for  work-accidents,  and 
is  a  contributing  factor  in  illness.  To  the  extent  that  men 
are  idle  because  of  industrial  irregularities,  industry  and  not 
the  worker  is  responsible  for  unemployment.  Social  insur- 
ance plans  generally  recognize  industry's  share  in  creating 
hazards,  the  burden  of  which  traditionally  has  rested  upon 
the  wage-earners,  and  aim  to  distribute  the  cost  in  accordance 
with  the  responsibility.  By  this  means  social  insurance  not 
only  spreads  out  the  cost  among  wage-earners  as  a  group,  but 
also  distributes  it  between  employers  and  workers.  Experi- 
ence with  voluntary  insurance  has  demonstrated  that  the  only 
method  of  making  insurance  universal  among  wage-earners, 
and  of  having  employers  assume  their  share  of  the  cost,  is  to 
make  it  compulsory. 

Thus,  although  beginning  in  each  case  with  some  form  of 
private  organization,  there  has  been  developed,  to  meet  the 
peculiar  risks  which  modern  industrial  workers  must  endure, 
a  special  kind  of  insurance,  depending  for  its  inclusiveness, 
its  financial  security,  its  economical  administration,  and  its 
effectiveness  in  reducing  the  cause  of  each  particular  evil, 
upon  an  element  of  social  compulsion. 

Various  countries  have  social  insurance  against  accident 
and  occupational  disease,  against  sickness,  against  old  age  and 
invalidity,  against  death  and  the  consequent  dependency  of 
widows  and  orphans,  and  finally  against  unemployment.  In 
all  of  this  social  action  an  important  element  of  self-defense 
is  not  lacking.  It  is  clearly  recognized  that  insurance  is 


1  See  Chapter  IX,  "Administration.' 
25 


386       PRINCIPLES  OF  LABOR  LEGISLATION 

the  most  effective  device  for  protecting  society  itself  against 
the  pressure  of  incapacitated  individuals  who  otherwise  would 
be  thrown  upon  the  community  for  maintenance.  And  while 
attempting  to  avoid  the  demoralizing  round  of  charity,  by 
means  of  an  insurance  program,  there  is  consciously  promoted 
a  system  of  individual  care  aimed  at  the  scientific  promotion 
of  the  worker's  efficiency. 

i.  INDUSTRIAL  ACCIDENT  INSURANCE 

The  first  kind  of  social  insurance  to  be  developed  exten- 
sively through  legislation  in  the  United  States,  probably  be- 
cause of  the  comparative  ease  of  recognizing  both  the  indus- 
trial cause  and  the  far-reaching  extent  of  the  evil,  is  insur- 
ance against  occupational  accidents  and  diseases,  or  as  it 
is  more  popularly  termed  in  this  country,  workmen's  com- 
pensation. 

Compensation  to  the  injured  workman  is  based  upon  the 
theory  that  the  consumer  of  economic  goods  should  bear  all 
the  expenses  incurred  in  the  production  of  such  goods.  Among 
those  expenses  must  be  included  the  pecuniary  losses  from 
deaths  and  injuries  occurring  in  the  regular  course  of  produc- 
tion. Wages  lost,  medical  attendance,  and  burial  expenses, 
in  case  of  accidental  injury  or  death  are  all  losses  which  should 
be  considered  as  a  part  of  the  expense  of  production.  If 
these  losses  are  to  be  borne  by  the  workman,  he  indirectly 
carries  part  of  the  expense  of  production.  In  order  to  avoid 
this,  the  expense  of  work-accidents,  it  is  now  generally  agreed, 
should  be  treated  like  all  other  expenses  of  production;  it 
should  be  borne  by  the  employer  in  the  first  instance,  and 
be  shifted  by  him,  in  the  form  of  increased  prices,  upon  the 
consumer  of  those  goods  in  the  production  of  which  the  in- 
juries were  sustained. 

Our  present  compensation  laws  have  passed  through  a  long 
period  of  development,  and  have  many  precedents.  As  min- 
ing and  navigation  developed  in  Europe,  the  workmen  of  these 
two  industries  formed,  in  the  eighteenth  century  and  some- 
times even  earlier,  mutual  accident  insurance  associations  for 
their  own  protection.  The  above  industries  were  the  pioneers 
in  forming  such  mutual  associations  largely  because  each  man 


SOCIAL  INSURANCE  387 

was  greatly  dependent  for  his  safety  upon  the  care  of  his  fel- 
low workmen.1 

In  the  handicraft  production  of  the  middle  ages,  not  only 
were  the  workmen  very  closely  related,  but  there  was  also 
a  close  connection  between  the  master  and  his  servants. 
Manufacturing  in  the  gilds  was  conducted  on  a  small  scale, 
and  each  master  had  but  few  helpers.  Accidents  were  not 
numerous  because  machinery  was  not  developed,  and  produc- 
tion was  carried  on  at  low  speed.  When  injuries  did  occur, 
the  master,  at  least  theoretically,  took  care  of  the  disabled. 

This  personal  relation  of  employer  and  employee  to  a  great 
extent  disappears  with  the  development  of  large  scale  industry. 
As  the  number  of  employees  to  each  establishment  increased, 
the  owner  could  no  longer  give  them  his  personal  attention 
and  care.  The  workman  gained  more  personal  freedom,  but 
lost  the  aid  of  his  employer  in  case  of  sickness  and  accident. 
To  recover  damages  he  now  had  to  seek  relief  by  legal  proceed- 
ings, either  under  the  common  law  or  under  statutes  estab- 
lishing employers'  liability;  he  had  to  bring  suit  against  his 
master. 

(i)  Rules  of  Employers'  Liability 

The  conditions  under  which  the  injured  could  recover  in 
court  were  based  upon  a  series  of  rules  which  included  (a)  the 
duties  of  the  employer;  (b)  the  burden  of  occupational  risks; 
(c)  the  fellow  servant  rule;  (d)  contributory  negligence;  and 
(e)  assumption  of  risks.2 

a.  Duties  of  the  Employer.  It  was  considered  the  duty  of 
the  employer  to  use  reasonable  care  in  protecting  his  em- 
ployees against  injury  while  engaged  in  his  service.3  Nu- 
merous court  decisions  defined  this  obligation  of  the  employer 
in  considerable  detail.  He  was  required  to  provide  a  safe 
place  to  work,  to  furnish  safe  tools  and  appliances,  to  con- 
duct his  business  in  a  safe  manner,  and  to  select  competent 
fellow  servants.  But  reasonable  care  required  the  guarding 
of  only  those  dangerous  conditions  of  which  the  employer  had 

1  United  States  Commissioner  of  Labor,  Twenty-fourth  Anmial  Report^ 
1909,  "Workmen's  Insurance  and  Compensation  Systems  in  Europe," 
Vol.  I,  p.  977. 

2  See  E.  H.  Downey,  History  of  Work  Accident  Indemnity,  1912,  p.  17. 

3  Priestly  v.  Fowler,  3  Meeson  and  Welsby,  i,  6  (England,  1837). 


388       PRINCIPLES  OF  LABOR  LEGISLATION 

knowledge  or  of  which  by  the  exercise  of  reasonable  care  he 
should  have  had  knowledge.1  It  is  held  by  many  experts 
that  no  matter  how  great  caution  is  taken  against  accidents, 
many  mishaps  will  occur  which  result  in  death  or  injury  to 
the  workman.  Establishments  in  which  every  machine  is 
guarded  and  where  safety  work  is  carried  on  ably  and  con- 
scientiously, will,  nevertheless,  it  is  declared,  have  numerous 
accidents.  These  injuries  are  said  to  be  due  to  the  inherent 
hazards  of  the  industry;  nothing  will  prevent  them. 

b.  Burden  of  Occupational  Risks.     It  is  to  these  accidents 
that  the  principle  of  the  burden  of  occupational  risks  applies. 
The  employee  assumes  the  ordinary  risks  of  the  employment 
in  which  he  engages.     In  an  early  American  case  the  court 
stated  that  "The  general  rule,  resulting  from  considerations 
as  well  of  justice  as  of  policy,  is,  that  he  who  engages  in  the 
employment  of  another  for  the  performance  of  specified  duties 
and  services,  for  compensation,  takes  upon  himself  the  natural 
and  ordinary  risks  and  perils  incident  to  the  performance  of 
such  services,  and  in  legal  presumption  the  wage  is  adjusted 
accordingly."  2    Freeing  the  employer  from  liability  thus  left 
a  vast  number  of  injuries  and  deaths  as  a  direct  burden  upon 
the  workmen  and  their  dependents,  with  no  chance  of  obtain- 
ing damages. 

c.  Fellow  Servant  Rule.     The  rules  holding  the  employer 
responsible  for  exercising  reasonable  care  in  protecting  his 
employees,  and  exempting  him  from  liability  for  inherent  oc- 
cupational hazards,  were  recognized  uniformly  by  the  courts. 
The  third,  or  fellow  servant  rule,  involved  more  serious  dif- 
ficulty.    The  usual  rule  of  law  is  that  a  master  is  responsible 
for  the  negligence  or  carelessness  of  his  servants  in  the  course 
of  their  duties.     Since  very  many  accidents  to  workmen  can 
be  traced  to  the  carelessness  or  negligence  of  a  co-employee, 
the  application  of  the  rule  as  between  fellow  servants  was  felt 
to  be  harsh.3    Exception  to  the  general  rule  was  first  taken 

1  Magee  v.  Chicago  &  Northwestern  R.  Co.,  82  Iowa  249,  48  N.  W.  92 

1  Farwell  i>.  Boston  &  W.  R.  Co.,  4  Metcalf  (Mass.)  49,  57  (1842). 

1  Consequently  the  courts,  declare  Shearman  and  Redfield  in  The  Law 
of  Negligence,  "boldly  invented  an  exception  to  the  general  rule  of 
masters'  liability,  by  which  servants  were  deprived  of  its  protection." 
(x*.  w.) 


SOCIAL  INSURANCE  389 

by  the  English  Exchequer  Court  in  1837  in  the  case  of  Priestly 
v.  Fowler.1  A  butcher  driver's  helper  was  injured  by  the 
breaking  down  of  the  wagon.  He  brought  suit  against  the 
butcher  for  damages  on  the  grounds  that  the  wagon  was  in- 
sufficient for  its  purpose,  and  that  it  had  been  overloaded. 
Damages  were  denied  on  the  ground  that  if  they  were  allowed 
the  master's  liability  would  extend  very  far.  He  might  be 
held  liable  to  the  footman  who  was  injured  by  a  defective 
wagon  due  to  the  negligence  of  the  coachmaker,  or  to  the 
servant  for  the  negligence  of  the  cook  in  not  properly  cleaning 
copper  vessels  in  the  kitchen.  Besides,  the  opinion  states, 
the  driver's  helper  "must  have  known  as  well  as  his  master, 
and  probably  better,"  that  the  wagon  was  insufficient,  or 
overloaded,  and  might  have  refused  to  use  it. 

A  similar  decision  was  rendered  four  years  later  in  America, 
without  mentioning  the  Priestly  case.  In  this  case  2  damages 
were  denied  a  locomotive  fireman  who  had  been  injured  owing 
to  the  negligence  of  the  engineer  under  whom  he  worked. 
It  was  held  that  the  railroad  company  was  not  a  guarantor 
to  one  employee  against  the  negligence  of  other  employees; 
that  the  fireman  should  have  been  aware  of  the  perils  of  his 
employment,  and  that  the  plaintiff  was  paid  for  his  labor 
and  for  the  danger  to  which  he  was  exposed. 

In  1842  Chief  Justice  Shaw  of  Massachusetts  gave  the  fel- 
low servant  rule  a  definite  formulation  and  a  wide  application 
in  deciding  the  case  of  Farwell  v.  Boston  and  Worcester  Rail- 
road Corporation  3  in  favor  of  the  defendant.  An  engineer 
brought  action  for  damages  because  he  had  lost  a  leg  due  to 
the  switchman's  neglecting  to  change  a  switch.  Justice  Shaw 
argued  that  any  servant  might  reasonably  anticipate  that 
his  associates  will  at  times  be  careless  and  negligent ;  that  this 
is  one  ®f  the  risks  of  employment,  to  which,  in  legal  pre- 
sumption, the  compensation  is  adjusted.  Want  of  care  can 
be  anticipated  as  much  as  a  coupling  out  of  repair.  The 
brakeman  can  guard  against  one  as  much  as  against  the 
other — being  powerless  against  both. 

This  chain  of  reasoning  was  accepted  as  sound  and  con- 

1  Priestly  ».  Fowler,  3  Meeson  and  Welsby,  I,  6  (England,  1837). 

2  Murray  v.  South  Carolina  R.  Co.,  I  McMullan  385  (1841). 

3  Farwell  v.  Boston  and  W.  R.  Co.,  4  Metcalf  (Mass.)  49  (1842). 


PRINCIPLES  OF  LABOR  LEGISLATION 

elusive,  and  numerous  later  decisions  were  based  on  it.  It 
relieved  the  master  from  all  liability  for  an  injury  sustained 
on  account  of  the  negligence  or  carelessness  of  a  fellow  ser- 
vant provided  the  master  had  exercised  reasonable  care  in 
his  selection.1 

d.  Contributory  Negligence.     According  to  the  doctrine  of 
contributory  negligence  a  plaintiff  for  damages  for  an  injury 
occasioned  by  the  fault  of  the  employer  must,  in  order  to  win 
his  case,  establish  his  own  freedom  from  negligence.     Any 
negligence  on  the  part  of  the  injured,  no  matter  how  slight  in 
comparison  with  that  of  the  employer,  will  cause  him  to  lose 
the  suit,  if  without  that  negligence  the  accident  would  not 
have  occurred.     Such  negligence  exists  if  the  employee  con- 
tinues to  work  under  conditions  which  are  apparently  danger- 
ous and  which  a  reasonably  prudent  man  would  avoid,  or  if 
his  own  want  of  due  care  contributed  as  a  proximate  cause 
to  the  accident.2 

e.  Assumption  of  Risk.     As  a  last  resort  to  free  himself 
from  liability  the  employer  could  set  up  the  defense  that  the 
injured  workman  had  "assumed"  the  risk.     The  risk  referred 
to  in  this  connection  is  not  the  ordinary  inherent  hazard  of 
the  occupation,  but  an  abnormal  danger  of  which  the  em- 
ployee was  fully  aware,  but  in  spite  of  which  he  continued  to 
work.     The  principle  of    assumption  of   risk  has,  however, 
been  modified  in  several  states  by  statutes  in  favor  of  the 
workman.     This  is  particularly  true  in  case  of  children  and 
of  railroad  workers. 

It  can  easily  be  seen  that  with  these  last  four  rules,  all 
aiming  to  relieve  the  employer  of  liability,  it  is  extremely  dif- 
ficult for  the  injured  workman  to  win  a  suit  for  damages. 
In  order  to  gain  a  favorable  verdict  he  must  be  able  to  show 
that  the  injury  was  the  immediate  result  of  the  employer's 
failure  to  exercise  ordinary  care,  and  that  it  was  not  contrib- 
uted to  in  any  degree  by  his  own  want  of  ordinary  care. 
Moreover,  he  cannot  recover  if  the  accident  was  due  to  an 
ordinary  hazard  of  the  employment,  or  to  the  negligence  of 

1  Seymour  D.  Thompson,  Commentaries  on  the  Law  of  Nes.lis.ence,  IQOI- 
1905,  Vol.  IV,  p.  270,  §  4048. 

2  Butterfield  t>.  Forester,  n  East  60  (England,  1809);  Haley  v.  Chicago 
&  Northwestern  R.  Co.,  21  Iowa  15  (1866). 


SOCIAL  INSURANCE  39 1 

a  fellow  workman,  or  to  a  defect  due  to  the  negligence  of  the 
employer  that  was  known  to  the  injured  and  that  created  a 
condition  under  which  a  prudent  man  would  not  have  con- 
tinued to  work. 

Satisfactory  statistics  are  not  available  to  show  definitely 
the  proportion  of  injured  men  who  received  indemnity  under 
these  liability  doctrines.  From  the  meager  investigations 
which  have  been  made,  however,  it  may  be  concluded  that 
but  few  recovered  damages,  and  that  the  amounts  were  in 
many  cases  shamefully  small.  Under  the  liability  system 
insurance  companies  have  engaged  in  carrying  the  employer's 
risk.  They  have  expert  legal  advice,  and  are  able  to  con- 
test wage-earners'  claims  even  more  effectively  than  the 
average  employer.  It  is  true  that  numerous  laws  have  been 
enacted  in  most  countries  attempting  to  place  more  liability 
Upon  the  employer;  Germany  passed  a  law,  wide  in  scope, 
to  that  effect  in  1871,  and  Great  Britain  followed  in  1880. 
The  first  American  employers'  liability  law  was  passed  in 
Alabama  in  1885,  followed  by  Massachusetts  in  1887.  Among 
the  best  of  these  laws  was  the  federal  statute  establishing  the 
liability  of  railroad  companies  for  injuries  to  their  employees.1 
Notwithstanding  all  attempted  legal  regulation,  the  position 
of  the  injured  workman  was  not  much  improved.  To  recover 
he  had  to  go  to  the  courts  and  had  to  meet  the  strong  legal 
opposition  of  insurance  companies  or  of  his  employer. 

Not  only  are  the  injured  man's  chances  to  win  his  case  very 
small  and  the  machinery  too  slow  to  bring  relief  when  it  is 
most  needed,  but  the  system  is  extremely  wasteful.  The  fol- 
lowing figtires  taken  from  the  records  of  ten  insurance  com- 
panies for  a  three-year  period  will  substantiate  this  state- 
ment : 2 

Collected  from  employers $23,523,585 

Absorbed  by  companies  in  profits  and  expenses.  14,963,790 
Received  by  plaintiffs'  attorneys  (approximate- 
ly)        1,900,000 

Received  by  injured  workmen  or  their  depend- 
ents (approximately) 6,660,000 


United  States,  Acts  1907-1908,  C.  149. 

2  New  York  Commission  on  Employers'  Liability  and  Other  Matters, 
First  Report,  1910,  pp.  29-31. 


392       PRINCIPLES  OF  LABOR  LEGISLATION 

Of  every  $100  paid  by  the  employer  in  premiums,  but  $28 
reached  the  workman,  and  that  amount  only  after  a  long 
legal  action  in  many  instances.  In  certain  leading  industrial 
states  it  was  found  that  it  required  on  the  average  from  two 
to  six  years  to  reach  final  judgment  in  a  fatal  accident  case 
under  employers'  liability.1 

Without  question  but  a  small  proportion  of  cases  are  taken 
to  court,  because  the  injured  knows  an  attempted  recovery 
is  but  a  gamble,  with  all  odds  against  him.  As  a  rule  the  in- 
surance companies  act  as  if  their  duty  under  employers' 
liability  is  not  to  compensate  the  injured,  but  to  defeat  their 
claims. 


(2)  Beginnings  of  Industrial  Accident  Insurance 

The  credit  for  first  realizing  that  in  order  to  furnish  certain 
and  adequate  relief  to  the  injured  workman  it  was  necessary 
to  provide  insurance  for  all  laborers,  and  for  all  accidents, 
must  be  given  to  Germany.  The  original  bill  to  this  effect 
was  introduced  in  the  Reichstag  in  1881,  but  failed  to  be 
adopted.  The  following  year  a  second  bill  was  introduced 
providing  for  sickness  and  accident  insurance.  The  sickness 
clauses,  including  provisions  for  accident  compensation  dur- 
ing the  first  thirteen  weeks  of  disability,  were  passed  in  1883, 
but  the  accident  insurance  was  again  defeated.  Finally  in 
1884  a  bill  providing  compulsory  insurance  against  accidents 
was  passed  which  became  effective  in  October,  1885. 

a.  German  System.  The  German  law  has  been  frequently 
amended  and  extended  in  scope,  and  to-day  practically  every 
industry  of  that  country  is  included.  The  federal  council 
may  exempt  non-hazardous  establishments  upon  application, 
but  as  late  as  1909  no  such  exemptions  had  been  made.2 

Under  the  German  system  the  compensation  of  the  injured 
workman  for  the  first  thirteen  weeks  of  disability  comes  from 
the  sick  funds.  During  the  first  four  weeks  he  receives  50 
per  cent.,  and  from  the  fifth  to  the  thirteenth  week,  inclu- 
sive, 66%  per  cent,  of  his  wages,  and  the  latter  proportion  is 

E.  H.  Downey,  History  of  Work  Accident  Indemnity  in  Iowa,  p.  79. 
'United  States  Commissioner  of  Labor,  Twenty-fourth  Annual  Report, 
Vol.  I,  p.  993. 


SOCIAL  INSURANCE  393 

continued  from  the  accident  funds  until  temporary  dis- 
ability ceases.  The  sick  funds  are  maintained  by  contri- 
butions two-thirds  of  which  are  paid  by  the  workmen  and 
one-third  by  the  employers.  From  the  fifth  to  the  thirteenth 
week  the  additional  16%  per  cent,  of  wages  is  paid  by  the 
employer  in  whose  establishment  the  accident  occurs. 
Thus  accident  compensation  comes  from  three  sources : 

(1)  From  the  first  to  the  fourth  week  of  disability,  inclusive, 
from  the  sick  funds; 

(2)  From  the  fifth  to  the  thirteenth  week,  inclusive,  from 
the  sick  fund,  and  the  additional  16%  per  cent,  from  the 
employer; 

(3)  After  the  thirteenth  week  from  the  accident  insurance 
associations  composed  of  employers. 

During  the  decade  1886  to  1895  accidents  causing  a  dis- 
ability of  less  than  thirteen  weeks  formed  84  per  cent,  of  the 
total,  and  the  cost  of  these  injuries,  paid  from  the  sick  funds, 
is,  according  to  Dr.  Bodeker's  estimate,  16%  per  cent,  of  the 
total  cost  of  accident  insurance.  Since  the  insured  work- 
men pay  two-thirds  of  the  expense  of  the  sick  funds,  they 
therefore  provide  about  n  per  cent,  of  the  cost  of  accident 
insurance,  and  the  employers  89  per  cent.1 

In  addition  to  the  monetary  benefit,  free  medical  attend- 
ance, medicines,  and  appliances  are  provided.  During  the 
first  thirteen  weeks  these  costs  are  paid  by  the  sick  fund,  and 
after  that  by  the  insurance  associations.  To  bring  about  a 
speedy  recovery,  and  to  avoid  large  pensions  which  would 
result  if  the  injured  were  permanently  disabled,  the  insur- 
ance associations  have  established  numerous  hospitals,  con- 
valescent homes,  and  similar  institutions. 

In  case  of  permanent  total  disability  the  injured  workman 
receives  66%  per  cent,  of  wages  for  life.  For  permanent 
partial  disablement  he  receives  a  pension  in  proportion  to 
the  degree  of  disablement.  In  computing  the  amount,  the 
nature  of  his  occupation  and  training  are  taken  into  considera- 
tion ;  for  example,  the  loss  of  a  finger  would  affect  a  linotype 
operator  much  more  seriously  than  a  foundry  laborer,  and 
accordingly  he  would  receive  a  larger  pension. 

1  United  States  Commissioner  of  Labor,  Twenty-fourth  Annual  Report, 
Vol.  I,  p.  999. 


394       PRINCIPLES  OF  LABOR  LEGISLATION 

If  the  accident  results  in  death  a  funeral  benefit  is  paid  in - 
all  cases,  whether  the  deceased  has  left  dependents  entitled 
to  survivors'  benefits  or  not.  A  liberal  pension  is  provided 
for  surviving  dependents.  The  widow  receives  20  per  cent.  - 
of  the  average  annual  earnings  of  her  husband,  for  life.  If 
she  remarries  she  is  given  three  times  the  annual  amount,  or 
60  per  cent.,  in  a  lump  sum,  but  then  her  benefits  cease.  If 
a  woman  supporting  a  dependent  husband  is  killed,  he  receives 
20  per  cent,  of  her  wages  as  long  as  he  is  unable  to  support 
himself.  Each  child  receives  20  per  cent,  of  the  wages  of  the 
killed  parent  until  the  age  of  fifteen,  but  the  total  benefits 
may  not  exceed  60  per  cent,  of  the  average  annual  earnings. 
If  there  are  more  than  two  dependent  children  in  addition  to 
the  widow,  the  benefits  are  divided  equally  so  as  to  total  60 
per  cent. 

The  most  important  branch  of  the  administrative  ma- 
chinery of  the  German  compulsory  insurance  law  is  the  mutual  - 
trade  associations.  Employers  in  related  trades  organize  their 
own  associations,  fix  their  own  rates,  and  enforce  their  own 
safety  requirements,  and  to  the  special  facilities  which  this 
method  affords  is  mainly  due  the  conspicuous  success  of  the 
German  system  in  promoting  accident  prevention.  Each 
Berufsgenossenschaft,  or  trade  association,  has  its  own  constitu- 
tion, but  is  closely  regulated  by  the  state  and  the  imperial  - 
insurance  office.  Subordinate  to  the  imperial  insurance  office 
is  a  system  of  local  and  superior  insurance  offices,  each  com- 
posed of  public  officials,  with  associates  elected  by  and  from 
employers  and  employees,  respectively.  Judicial  and  admin- 
istrative matters  passed  upon  by  the  local  office  may,  subject 
to  certain  restrictions,  be  appealed  to  the  superior  office,  and 
from  that  to  the  imperial  office,  whose  decision  is  usually 
final. 

According  to  the  report  of  the  imperial  statistical  bureau 
issued  in  1914,  over  28,000,000  workmen  were  insured  against 
accidents  in  1912,  and  $42,500,000  was  paid  in  indemnity. 
The  system  is  cheaply  administered  and  cases  are  settled 
quickly,  giving  relief  when  it  is  most  needed. 

b.  Methods  in  Other  Countries.  The  German  insurance  sys- 
tem has  been  described  in  detail  because  it  was  the  first  to 
be  introduced,  is  one  of  the  most  efficient,  and  affords  data 


SOCIAL  INSURANCE  395 

based  on  experience  from  which,  in  various  degrees,  other 
countries  gleaned  hints  to  be  utilized  in  drafting  their  own 
acts. 

Great  Britain  passed  a  compensation  law  in  1897  which  was 
frequently  amended  and  amplified  in  scope  until  the  present 
law  was  enacted  in  I906.1  All  employments,  and  all  injuries 
arising  out  of  and  in  the  course  of  employment,  are  covered. 
In  case  of  death  three  years'  wages  are  paid  in  a  lump  sum 
to  the  dependents.  Disability  benefits  are  limited  to  50  per 
cent,  of  wages,2  but  continue  for  life  if  the  disability  is  per- 
manent. The  employer  bears  the  entire  cost  of  compensation, 
and  may  either  carry  his  own  risk  under  proper  safeguards 
or  insure  in  a  private  or  mutual  company. 

The  principle  of  industrial  accident  insurance,  or  workmen's 
compensation  as  it  is  usually  called,  is  now  so  generally  ac- 
cepted that  over  forty  foreign  countries,  including  practically 
all  of  any  industrial  importance,  have  laws  of  this  character 
covering  together  some  50,000,000  wage-earners.3  Benefits 
range  from  50  per  cent,  to  So4  per  cent,  of  wages,  and  in  most 
of  the  important  countries  medical  and  surgical  aid  is  ren- 
dered. To  secure  the  payment  of  benefits,  employers  are 
usually  required  to  insure  their  risk,  often  in  institutions  pre- 
scribed and  controlled  by  the  state. 

c.  Inclusion  of  Occupational  Diseases.    Though  workmen's 


1  For  complete  summary  of  this  and  other  European  laws  see  United 
States  Bureau  of  Labor  Statistics,  Bulletins  No.  203,  1917,  pp.  297-350; 
24J,  1918,  pp.  96-102. 

2  Benefits  for  total  incapacity  were  increased  25  per  cent,  for  the  period 
of  the  war  and  for  six  months  thereafter,  and  beginning  January  i,  1920, 
a  further  "war  addition"  amendment  became  effective  raising  these  bene- 
fits to  75  per  cent,  above  their  original  amounts. 

3  Among  the  more  important  foreign  countries  with  workmen's  com- 
pensation systems  in  1920,  were  Argentina,  Austria,  Belgium,  Brazil, 
Chile,   Colombia,   Cuba,   Denmark,   France,   Germany,   Great  Britain, 
Hungary,    Italy,    Japan,    Netherlands,    New    Zealand,    Norway,    Peru, 
Portugal,  Russia,  South  Australia,  Spain,  Sweden,  Switzerland,  Union  of 
South  Africa,  six  states  in  Australia,  seven  in  Mexico,  and  eight  provinces 
of  Canada. 

4  This  latter  percentage  occurs  only  in  the  Swiss  law  of  1911,  Sec.  74, 
and  is  payable  only  during  the  period  of  illness  immediately  following  an 
accident,  after  which  the  compensation  for  permanent  total  disability  is 
reduced  to  70  per  cent,  of  wages.     Under  both  the  Swiss  and  the  German 
laws,  however,  indemnity  may  be  increased  to  100  per  cent,  of  wages  in 
exceptional  cases  requiring  special  care. 


396       PRINCIPLES  OP'  LABOR  LEGISLATION 

compensation  laws  originally  concerned  themselves  only  with 
mechanical  injuries,  such  as  cuts,  broken  bones,  or  loss  of 
members,  it  soon  became  obvious  that  elementary  justice 
required  the  extension  of  similar  relief  to  the  victims  of  specific 
industrial  diseases  contracted  in  the  course  of  employment. 
The  first  country  to  take  this  forward  step  was  Great  Britain, 
which  in  the  act  of  1906  included  for  compensation  a  schedule 
of  six  of  the  commonest  occupational  maladies.  While  South 
Australia  and  several  Canadian  provinces  have  followed  this 
example,  the  mother-country  has  three  times  expanded  its 
original  schedule  until  in  1920  no  fewer  than  twenty-eight  dis- 
eases were  there  compensable.  These  include  poisoning  by 
lead,  mercury,  phosphorus,  or  arsenic,  compressed-air  illness, 
anthrax,  a  number  of  miners'  ailments,  glass- workers'  cataract, 
and  telegraphers'  and  writers'  cramp.1  In  other  countries, 
also,  the  beginnings  of  similar  consideration  for  victims  of 
occupational  maladies  are  to  be  noted.  An  amendment 
adopted  in  1919  to  the  French  accident  insurance  law  in- 
cludes industrial  lead  poisoning  and  mercury  poisoning  for 
compensation,  and  other  diseases  may  be  added  by  subsequent 
legislation.2  Because  of  the  peculiarly  infectious  nature  of 
the  disease  and  its  close  connection  with  the  occupations  in 
which  it  occurs,  both  France  and  Germany  now  class  anthrax, 
for  compensation  purposes,  as  an  accident.  In  France,  also, 
by  the  financial  law  of  1911,  employers  of  miners  suffering 
from  ankylostomiasis,  or  "miners'  hookworm,"  are  required 
to  bear  the  expense  of  treatment  and  to  pay  compensation. 
Foundations  for  a  broad  system  of  occupational  disease  in- 
demnity have,  moreover,  been  laid  in  Germany  3  and  Switzer- 
land.4 In  the  former  country  the  federal  council  has  been  given 
permission,  and  in  the  latter  it  has  been  ordered,  to  draw  up 
a  list  of  trade  diseases  for  which  compensation  shall  be  paid 
at  the  same  rate  as  for  trade  accidents.  Up  to  the  beginning 
of  1920,  however,  neither  country  had  drawn  up  its  list. 

l  For  complete  list  see  United  States  Bureau  of  Labor  Statistics,  Monthly 
Labor  Review,  April,  1919,  pp.  206-207.  Two  diseases  are  repeated  in  the 
schedules  in  order  to  cover  additional  industries. 

1  United  States  Bureau  of  Labor  Statistics,  Monthly  Labor  Review, 
January,  1920,  pp.  259-261. 

'German  workmen's  insurance  code,  1911,  Article  547. 

'Swiss  federal  law  relating  to  sickness  and  accident  insurance,  1911, 
Article  68 1 


SOCIAL  INSURANCE  397 

(j)  Compensation  Legislation  in  the  United  States 

As  in  other  forms  of  social  insurance,  to  be  considered  later, 
the  United  States  acted  much  later  than  European  countries 
to  provide  for  the  injured  workman.  The  first  legislation 
providing  for  stated  benefits  without  suit  or  proof  of  negli- 
gence was  enacted  in  Maryland  in  1902,  in  the  form  of  a  co- 
operative insurance  law.1  The  law  was  narrow  in  scope, 
covering  only  a  small  specific  list  of  industries,  and  was  de- 
clared unconstitutional  in  I904.2  In  1908  Congress  enacted 
a  law  granting  to  certain  employees  of  the  United  States  the 
right  to  compensation  for  injuries  sustained  in  the  course  of 
employment.  In  1910  an  act  was  passed  in  Montana  pro- 
viding for  the  maintenance  of  a  state  cooperative  insurance 
fund  for  miners  and  laborers  in  and  about  mines.  This  also 
was  declared  unconstitutional.3 

The  first  law  of  general  application  was  passed  by  New 
York  in  1910.  It  was  made  elective  for  most  occupations,  but 
compulsory  for  an  enumerated  list  of  hazardous  employments. 
This  statute  was  declared  unconstitutional  in  1911  in  the  case 
of  Ives  n.  South  Buffalo  Railway  Company,4  but  an  amend- 
ment to  the  constitution  made  possible  the  enactment  of  a 
compulsory  law  in  1914.  Other  states  followed  New  York's 
lead,  and  during  the  nine  years  1911-1919  compensation  laws 
were  enacted  in  forty-two  states,5  in  addition  to  Alaska, 
Hawaii,  and  Porto  Rico.  Moreover,  the  1908  law  covering 
federal  employees  was  repealed  in  favor  of  the  act  of  1916, 
which  covers  all  civilian  employees  of  the  United  States. 

In  the  early  days  one  of  the  main  obstacles  to  the  enactment 
of  effective  compensation  laws  was  the  question  of  constitu- 
tionality. It  was  maintained  that  to  require  an  employer  to 
pay  damages  for  an  accident  for  which  he  was  not  to  blame 


1  United  States  Bureau  of  Labor  Statistics,  Bulletin  No.  126,  p.  30. 

2  Franklin  v.  United  Railways  and  Electric  Co.  of  Baltimore  (1904)- 
Summarized  in  United  States  Bureau  of  Labor,  Bulletin  No.  57,  1905, 
pp.  689,  690. 

3  Cunningham  v.  Northwestern  Improvement  Co.,  44  Mont.  180,  119 
Pac.  554  (1911). 

4Ives  v.  South  Buffalo  R.  Co.,  201  N.  Y.  271,  94  N.  E.  431  (1911). 
6  All  except  Arkansas,  Florida,  Georgia,  Mississippi,  North  Carolina, 
and  South  Carolina. 


398       PRINCIPLES  OF  LABOR  LEGISLATION 

was  taking  property  without  due  process  of  law,  that  both 
employer  and  employee  were  deprived  of  the  right^  of  trial  by 
jury,  and  that  the  employer  was  charged  with  liability  without 
fault. 

In  1917,  however,  the  constitutionality  of  the  chief  types 
of  compensation  laws  was  affirmed  by  the  United  States 
Supreme  Court  in  three  far-reaching  decisions  involving  the 
New  York,  Iowa,  and  Washington  laws.1  The  principal  con- 
stitutional question  under  the  New  York  compulsory  law  was 
whether  the  statute,  by  requiring  the  employer  to  make  fixed 
payments  for  his  employees'  industrial  injuries,  deprived  him 
of  any  rights  of  liberty  and  property  guaranteed  him  by  the, 
fourteenth  amendment  to  the  federal  constitution.  The 
Supreme  Court  ruled  unanimously  that  the  enactment  of  laws 
compensating  for  industrial  accidents  tended  to  promote  the 
public  welfare  and  was  therefore  within  the  police  power  of 
the  state,  saying:  "We  recognize  that  the  legislation  under 
review  does  measurably  limit  the  freedom  of  employer  and 
employee  to  agree  respecting  the  terms  of  employment,  and 
that  it  cannot  be  supported  except  on  the  ground  that  it  is  a 
reasonable  exercise  of  the  police  power  of  the  state.  In  our 
opinion  it  is  fairly  supportable  upon  that  ground.  And  for 
this  reason:  The  subject-matter  in  respect  of  which  freedom 
of  contract  is  restricted  is  the  matter  of  compensation  for 
human  life  or  limb  lost  or  disability  incurred  in  the  course  of 
hazardous  employment,  and  the  public  has  a  direct  interest 
in  this  as  affecting  the  common  welfare.  'The  whole  is  no 
greater  than  the  sum  of  all  the  parts,  and  when  the  individual 
health,  safety,  and  welfare  are  sacrificed  or  neglected,  the 
state  must  suffer.'2"  The  Iowa  elective  law  was  sustained 
by  a  reference  to  the  New  York  case. 

The  Washington  law  presented  a  different  issue.  In  that 
state  employers  in  specified  hazardous  occupations  are  re- 
quired to  pay  workmen's  compensation  premiums  to  a  state 
insurance  fund  out  of  which  injured  workmen  are  compen- 

*  New  York  Central  R.  Co.  v.  White,  243  U.  S.  i88»  37  Sup.  Ct.  247 
(1917);  .Hawkins  v.  Bleakly,  243  U.  S.  210,  37  Sup.  Ct.  255  (1917;; 
Mountain  Timber  Co.  v.  Washington,  243  U.  S.  219,  37  Sup.  Ct.  260 


. 
2  Holden  v.  Hardy,  169  U.  S.  366,  397,  18  Sup.  Ct.  383  (1898). 


SOCIAL  INSURANCE  399 

sated.  In  determining  whether  such  enforced  contributions 
were  a  "fair  and  reasonable  exertion  of  governmental  power" 
the  court  thought  it  "proper  to  consider:  (i)  Whether  the 
main  object  of  the  legislation  is,  or  reasonably  may  be  deemed 
to  be,  of  general  and  public  moment,  rather  than  of  private 
and  particular  interest,  so  as  to  furnish  a  just  occasion  for 
such  interference  with  personal  liberty  and  the  right  of  ac- 
quiring property  as  necessarily  must  result  from  carrying  it 
into  effect.  (2)  Whether  the  charges  imposed  upon  employers 
are  reasonable  in  amount,  or,  on  the  other  hand,  so  burdensome 
as  to  be  manifestly  oppressive.  And  (3)  whether  the  burden 
is  fairly  distributed,  having  regard  to  the  causes  that  give 
rise  to  the  need  for  the  legislation." 

In  regard  to  the  first  point  the  court  deemed  the  considera- 
tions advanced  in  the  New  York  decision  "sufficient  to  sup- 
port the  state  of  Washington  in  concluding  that  the  matter 
of  compensation  for  accidental  injuries  with  resulting  loss  of 
life  or  earning  capacity  of  men  employed  in  hazardous  occu- 
pations is  of  sufficient  public  moment  to  justify  making  the 
entire  matter  of  compensation  a  public  concern,  to  be  admin- 
istered through  state  agencies." 

Upon  the  second  point  the  court  said,  "no  particular  con- 
tention is  made  that  the  compensation  allowed  is  unduly  large; 
and  it  is  evident  that  unless  it  be  so  the  corresponding  burden 
upon  the  industry  cannot  be  regarded  as  excessive  if  the  state 
is  at  liberty  to  impose  the  entire  burden  upon'  the  industry." 

On  the  third  question,  of  fair  distribution,  the  court  found 
that  "the  application  of  a  proper  percentage  to  the  pay  roll 
of  the  industry  cannot  be  deemed  an  arbitrary  adjustment, 
in  view  of  the  legislative  declaration  that  it  is  "deemed  the 
most  accurate  method  of  equitable^  distribution  of  burden  in 
proportion  to  relative  hazard.  ...  As  further  rebutting  the 
suggestion  that  the  imposition  is  exorbitant  or  arbitrary,  we 
should  accept  the  declaration  of  intent  that  the  fund  shall 
ultimately  become  neither  more  nor  less  than  self-supporting, 
and  that  the  rates  are  subject  to  future  adjustment  by  the 
legislature  and  the  classifications  to  rearrangement  according 
to  experience,  as  plain  evidence  of  an  intelligent  effort  to  limit 
the  burden  to  the  requirements  of  each  industry." 

Although  the  industry  involved  in  the  case,  logging,  is 


400       PRINCIPLES  OF  LABOR  LEGISLATION 

clearly  hazardous,  the  court  took  occasion  to  demolish  the 
objection  that  the  act  includes  non-hazardous  occupations, 
saying  "the  question  whether  any  of  the  industries  enumerated 
in  section  four  is  non-hazardous  will  be  proved  by  experience, 
and  the  provisions  of  the  act  themselves  give  sufficient  assur- 
ance that  if  in  any  industry  there  be  no  accident  there  will  be 
no  assessment,  unless  for  expenses  of  administration." 

But  most  indicative  of  the  present  attitude  of  the  United 
States  Supreme  Court  toward  workmen's  compensation  legis- 
lation is  the  following  statement:  "The  act  cannot  be  deemed 
oppressive  to  any  class  of  occupation,  provided  the  scale  of 
compensation  is  reasonable,  unless  the  loss  of  human  life  and 
limb  is  found  in  experience  to  be  so  great  that  if  charged  to 
the  industry  it  leaves  no  sufficient  margin  for  reasonable 
profits.  But  certainly,  if  any  industry  involves  so  great  a 
human  wastage  as  to  leave  no  fair  profit  beyond  it,  the  state 
is  at  liberty,  in  the  interest  of  the  safety  and  welfare  of  its 
people,  to  prohibit  such  an  industry  altogether." 

Owing,  however,  to  the  adverse  decision  on  the  early  New 
York  compulsory  law  in  the  Ives  case,  most  American  com- 
pensation acts  have  been  made  elective.  That  is,  the  em- 
ployer is  given  his  choice  of  accepting  the  act  or  of  operating 
under  the  liability  law;  but  as  an  encouragement  to  the  em- 
ployer to  elect  compensation,  the  old  liability  defenses  of  fel- 
low servant's  fault,  contributory  negligence,  and  assumption 
of  risk,  discussed  earlier  in  this  chapter,  are  abrogated  or 
greatly  modified.  This  is  frequently  called  by  its  opponents 
"club"  legislation,  but  the  courts  have  sustained  it  as  a  valid 
exercise  of  legislative  power  for  a  public  end. 

The  relief  which  a  compensation  act  gives  to  the  injured 
workman  depends  upon  (a)  the  scope  of  the  law,  (6)  the  scale 
of  compensation,  (c)  the  provisions  for  rehabilitation,  (d)  the 
method  of  administration,  and  (e)  the  security  for  payment 
of  awards.  A  liberal  law,  that  is,  one  which  provides  a  high 
rate  of  indemnity,  will  be  of  little  service  unless  it  applies  to 
many  cases  of  accidents,  and  conversely  a  law  covering  many 
or  all  cases  will  not  accomplish  what  is  intended  unless  the 
benefits  provided  are  reasonably  high.  Again,  the  practical 
results  obtained,  no  matter  how  liberal  the  law,  will  be  seri- 
ously impaired  unless  means  are  provided  for  effective  admin- 


SOCIAL  INSURANCE  401 

istration  and  for  securing  the  actual  payment  to  the  injured 
worker  or  to  his  dependents  of  the  amount  awarded. 

,Jo)  Scope  of  Laws.  A  compensation  system  should  apply 
to  all  employments  and  cover  all  injuries.  In  the  early  days 
of  the  movement,  however,  partly  because  of  administrative 
difficulties  and  partly  because  of  the  incompleteness  of  public 
education  on  the  subject,  the  exclusion  of  certain  classes  of 
workers  and  of  certain  sorts  of  injuries  was  found  temporarily 
advisable. 

(a)  Employments  Included.  Nine  main  groups  of  workers 
are  commonly  excluded  from  American  state  compensation 
laws.  In  the  probable  order  of  their  importance  these  are: 
(i)  Employees  in  supposedly  non-hazardous  occupations;  (2) 
agricultural  laborers;  (3)  domestic  servants;  (4)  employees 
in  interstate  commerce;  (5)  workmen  in  establishments  em- 
ploying fewer  than  a  given  number  of  persons;  (6)  public 
employees;  (7)  casual  laborers;  (8)  those  not  engaged  in  the 
regular  course  of  the  employer's  business;  and  (9)  those  in 
employments  not  conducted  for  gain.  As  a  result  of  these 
exclusions  the  proportion  of  employees  protected  in  the 
various  states  ranged  in  1920  from  99.8  per  cent,  in  New 
Jersey  to  only  20.5  per  cent,  in  Porto  Rico.1  Altogether  it 
was  officially  estimated  at  the  end  of  1917,  when  compensa- 
tion laws  existed  in  forty  states  and  territories,  that  there 
were  in  these  states  and  territories  alone  over  8,500,000  Amer- 
ican wage-earners,  or  nearly  40  per  cent,  of  the  total  number 
within  the  area,  who  could  "not  possibly  be  covered  under 
any  existing  compensation  act."  2 

Of  the  various  exclusions  mentioned,  that  of  workers  in 
"non-hazardous"  occupations  is  particularly  indefensible.  A 
laborer  may  be  killed  no  matter  how  non-hazardous  the: 
occupation  seems.  As  has  often  been  stated,  it  is  that  indus- 
try in  which  a  person  is  injured  which  is  hazardous.  The 
exclusion  of  casual  workers  has  resulted  in  much  confusion. 
The  meaning  of  the  term  is  not  clear,  and  the  various  courts 


1  United  States  Bureau  of  Labor  Statistics,  Monthly  Labor  Review, 
January,  1920,  p.  237. 

2  United  States  Bureau  of  Labor  Statistics,  Bulletin  No.  240,  "Com- 
parison of  Workmen's  Compensation  Laws  of  the  United  States  up  to 
December  31,  1917,"  Carl  Hookstadt,  p.  29. 


402       PRINCIPLES  OF  LABOR  LEGISLATION 

and  commissions  differ  in  construing  it.  Longshoremen,  for 
example,  who  work  only  when  a  boat  is  to  be  loaded  or  un- 
loaded, have  been  held  not  to  be  casual  employees,  as  the 
irregularity  of  their  employment  is  inherent  in  shipping  by 
sea.  On  the  other  hand,  waiters  and  teamsters,  hired  for 
particular  jobs  lasting  only  a  day  or  thereabouts,  have  been 
held  to  be  casuals.  One  state  1  has  interpreted  casual  em- 
ployment to  mean  all  lasting  less  than  a  week.  Exemption 
of  establishments  with  a  small  number  of  employees  is  based 
on  the  theory  that  in  such  workplaces  the  accident  risk  is  less. 
When,  however,  the  exemption  is  extended  to  all  establish- 
ments with  fewer  than  sixteen  employees,2  very  few  are  left 
to  benefit  by  the  change  from  employers'  liability  to  work- 
men's compensation.  Employees  in  interstate  commerce, 
numbering  fully  1,300,000,  do  not  come  under  state  compen- 
sation laws  because  Congress  took  jurisdiction  when  it  enacted 
its  employers'  liability  law  covering  this  field.  By  a  five  to 
four  decision  the  United  States  Supreme  Court  held  that  the 
work  of  longshoremen  was  ''maritime  in  nature,"  and  that 
therefore  they  came  under  federal  admiralty  jurisdiction  and 
were  not  covered  by  state  workmen's  compensation  laws.3 
Within  a  few  months  Congress  adopted  an  amendment  to  the 
judicial  code  which  extended  the  benefits  of  state  compensa- 
tion acts  to  this  large  and  important  group  of  workmen.4  Early 
in  1920,  by  another  five  to  four  decision,  the  Supreme  Court 
declared  the  amendment  to  the  judicial  code  to  be  itself  un- 
constitutional . 5 

(6)  Injuries  Included.  All  injuries  sustained  in  the  course  of 
employment  should  be  compensated,  except  those  occasioned 
by  the  wilful  intention  of  the  employee  to  bring  about  the 
injury  or  death  of  himself  or  his  fellow  workmen.  These  are 
clearly  not  a  hazard  of  the  industry,  and  should  not  be  com-1 
pensated.  Some  states  also  exclude  accidents  caused  in  part 
by  the  intoxication  of  the  injured  employee.  Such  exclusion 
is  likely,  however,  to  cause  litigation  over  the  question  of 
whether  or  not  the  employee  was  "intoxicated";  and  since 

1  California. 

2  Alabama,  Laws  1919,  No.  245. 

8  Southern  Pacific  Co.  v.  Jensen,  244  U.  S.  205,  37  Sup.  Ct.  525  (1917). 

1  Public  82,  6sth  Congress,  ist  Session. 

6  Knickerbocker  Ice  Co.  v.  Stewart  (May  17,  1920). 


SOCIAL  INSURANCE  403 

compensation  legislation  aims  at  preventing  litigation  and 
securing  prompt  aid,  limitations  of  this  sort  are  to  be  depre- 
cated. Moreover,  the  safety  of  fellow  workmen  requires 
that  the  employer  be  discouraged  from  hiring  men  who  are 
prone  to  intoxication,  and  an  excellent  method  of  accomplish- 
ing this  result  is  to  make  subject  to  compensation  all  acci- 
dents occurring  to  such  employees. 

In  order  to  induce  the  workman  to  make  use  of  the  safety 
appliances  supplied  by  his  employer,  the  compensation  may  be 
reduced  if  he  wilfully  fails  to  use  such  guards  and  appliances. 
On  the  other  hand,  the  compensation  should  be  increased  in 
the  same  proportion  if  the  employer  fails  to  provide  the  proper 
devices,  and  the  laws  of  some  states  include  penalties  of  this 
nature.  In  Wisconsin,  for  example,  the  injured  receives  an 
increase  of  15  per  cent,  in  compensation  if  the  employer  did 
not  provide  guards  as  required  by  law,  but,  on  the  other  hand, 
his  compensation  is  reduced  15  per  cent,  if  he  fails  to  use  the 
guards  when  they  are  provided. 

(c)  Occupational  Diseases.  The  inclusion  of  occupational 
diseases  in  compensation  laws  has  been  much  discussed  in 
America..  It  is  recognized  that  numerous  diseases  are  con- 
tributed to  by  the  work  which  a  man  is  doing.  Working  at 
a  dusty  occupation  causes  tuberculosis.  Employments  re- 
quiring sudden  changes  in  temperature  are  instrumental  in 
bringing  about  pneumonia  and  other  organic  ailments.  To 
cover  all  these  diseases  would,  however,  make  a  compensa- 
tion law  very  complex  and  difficult  to  administer,  and  such 
disabilities  are  probably  better  taken  care  of  under  health 
insurance.1  Nevertheless,  there  are  some  diseases  which  arei 
I  so  plainly  and  directly  caused  by  the  nature  of  the  employment] 
(that  they  should  unquestionably  be  included.  Among  these 
are  lead,  mercury,  and  phosphorus  poisoning,  compressed-air 
illness,  anthrax,  and  a  number  of  fatigue  diseases  such  as 
miners'  nystagmus  and  telegraphers'  cramp.  Massachusetts 
has  been  paying  compensation  for  such  injuries  regularly  under 
its  act,  and  by  1920  the  laws  of  California,  Connecticut,  New 
York,  and  Wisconsin  had  been  amended  to  permit  similar 
payments.  The  plan  of  including  occupational  diseases  as 


1  See  "Health  Insurance,"  p.  415. 


4o4      PRINCIPLES  OF  LABOR  LEGISLATION 

" personal  injuries"  was  likewise  adopted  by  Congress  in  the 
law  covering  federal  civilian  employees. 
ffe  Scale  of  Compensation.  The  object  of  indemnity  is  two- 
fo|§ — f^t  and  more  important,  to  restore  the  workman's  earn- 
ing power  as  completely  and  quickly  as  possible,  so  that  society 
will  not  be  burdened  with  disabled  human  beings,  and  second, 
to  provide  for  the  support  of  the  family  while  the  surgical  and 
medical  treatment  is  being  given.  ~T6~eflect  the~former  it  is 
imperative  that  he  receive  efficient  medical  and  surgical  care. 

(a)  Medical  Attendance.  The  importance  of  medical  at- 
tendance is  often  underestimated.  Proper,  immediate  care 
tends  not  only  to  reduce  the  period  of  disability,  but  also  to 
diminish  the  number  of  serious,  perhaps  permanent  complica- 
tions. Lifelong  impairment  of  earning  capacity  frequently  re- 
sults from  improper  care  of  fractures;  infections  or  "blood- 
poisoning"  could  be  almost  eliminated  by  efficient  immediate 
attention.  Of  721  infections  reported  to  the  Wisconsin  In- 
dustrial Commission  during  a  two-year  period,  about  600  were 
the  result  of  small  scratches  and  breaks  of  the  skin.1  These 
cases  represented  a  total  of  12,500  working  days  lost,  and, 
under  the  Wisconsin  law,  a  compensation  of  about  $40,000. 
Had  proper  care  been  provided,  this  large  loss  of  time  and 
money  could  have  been  avoided. 

Full  medical  aid  at  the  employer's  cost  is  of  benefit  to  the 
workman  in  that  it  relieves  his  suffering,  reduces  the  period 
of  disability,  and  permits  his  return  to  full  earning  capacity 
in  shorter  time;  at  the  same  time,  in  virtue  of  this  fact,  it 
is  beneficial  to  the  employer  inasmuch  as  the  amount  of 
compensation  is  reduced.  If  the  wage-earner  is  required  to 
pay  for  his  own  medical  treatment,  he  will  not  receive  as  good 
care.  The  average  laborer  has  little  means  to  pay  for  good 
service,  even  when  earning  full  wages.  When  disabled  and 
receiving  only  a  part  of  his  wages,  he  is  even  less  able  to  pro- 
vide himself  with  proper  care. 

The  amount  of  medical  aid,  in  proportion  to  the  total  in- 
demnity, is  large.  During  1919  awards  totaling  $18,500,000 
were  made  to  injured  workmen  in  New  York.  Of  this  amount 
it  is  estimated  that  approximately  $3,750,000,  or  about  20 

1  Industrial  Commission  of  Wisconsin,  Shop  Bulletin  No.  5. 


SOCIAL  INSURANCE  405 

per  cent.,  was  for  medical  aid.1  Thus  it  is  evident  that  medi- 
cal care  is  a  very  important  factor  in  a  compensation  law  and 
should  not  be  underestimated.  It  is  of  such  importance  to  the 
welfare  of  the  injured  and  their  dependents  that  the  law  should 
require  the  giving  of  full  free  medical  attendance,  medicines 
and  appliances,  and  should  impose  a  limit  neither  in  time  nor 
in  amount.  Where  such  a  policy  has  been  followed,  besides 
vastly  benefiting  the  injured  it  has  achieved  marvelous  re- 
sults in  preventing  permanent  impairment. 

America  is  gradually  waking  up  to  the  economy  of  liberality 
in  this  respect,  but  while  most  states  provide  for  medical  care, 
the  majority  of  them  still  impose  either  a  time  limit,  an  amount 
limit,  or  both.  The  time  limits  range  from  two  weeks  to 
ninety  days,  while  the  amount  varies  from  $50  to  $600.  An 
increasing  number  of  states,  however,  are  giving  their  ad- 
ministrative boards  discretion  to  increase  the  period  or  amount. 

It  is  evident  that  in  those  states  having  low  limits  a  large 
part  of  the  medical  care  must  be  borne  by  the  injured.  The 
amounts  may  be  sufficient  to  take  care  of  the  less  serious  in- 
juries, but  in  case  of  accidents  resulting  in  fractures,  disloca- 
tions, and  serious  sprains  a  large  part  of  the  burden  falls  on 
the  workman  himself. 

(b)  Waiting  Period.  It  is  customary,  in  compensation  laws, 
to  provide  no  monetary  benefits  for  the  first  few  days  of  dis- 
ability. The  intervening  time  is  known  as  the  "waiting 
period"  and  its  object  is  to  prevent  malingering;  that  is,  to 
prevent  a  slightly  injured  man  from  pretending  inability  to 
work,  with  the  expectation  of  drawing  part  of  his  wages.  On 
the  other  hand,  if  the  period  is  too  long  it  will  prove  a  hard- 
ship to  the  injured.  The  proper  length  of  the  period  is  hard 
to  determine  and  varies  with  individual  cases,  but  it  seems 
that  three  days  is  sufficient.2  This  view  is  upheld  by  actual 
accident  experience.  Studies  of  accidents  made  by  Dr.  I.  M. 
Rubinow  and  by  the  Wisconsin  Industrial  Commission  show 
that  about  three-quarters  of  all  accidents  requiring  medical 
attendance  terminate  within  two  weeks,  and  that  two-thirds 

1  Figures  obtained  from  New  York  State  Industrial  Commission. 

2  The   American    Association   for    Labor    Legislation   recommends   a 
waiting  period  of  not  less  than  three  nor  more  than  seven  days.     See 
its  Standards  for  Workmen's  Compensation  Laws,  sixth  annual  revised 
edition,  1920,  p.  4, 


4o6       PRINCIPLES  OF  LABOR  LEGISLATION 

terminate  within  one  week.  Of  these  two-thirds,  one-half  cause 
no  disability  other  than  on  the  day  when  the  accident  occurs, 
and  one-quarter  cause  disability  lasting  from  one  to  three  days, 
while  only  one-quarter  result  in  disability  extending  over  more 
than  three  days.  For  example,  a  total  of  36,000  accidents  requir- 
ing medical  attendance  would  be  distributed  about  as  follows : 

Length  of  Disability  Number  of  Accidents      Per  Cent. 

Two  weeks  and  more 9,000 

One  week  or  more,  but  less  than  two  weeks 3>°oo 

Three  days  or  more,  but  less  than  one  week. . .   6,000 

More  than  one,  but  less  than  three  days 6,000 

One  day  (day  of  accident) 12,000 

Total 36,000  loo 

Hence,  if  the  waiting  period  is  two  weeks,  only  about  a  quarter, 
and  if  it  is  seven  days,  only  one-third,  of  the  injured  receive 
compensation.  By  reducing  the  period  to  three  days,  one- 
half  of  those  injured  would  be  entitled  to  benefits. 

In  a  small  number  of  states  there  is  no  waiting  period  and 
compensation  begins  on  the  day  of  accident.  Over  half  of 
the  states  set  a  period  of  seven  days  or  less,  and  most  of  the 
others  provide  for  from  ten  to  fourteen  days.  In  some,  how- 
ever, compensation  is  paid  from  the  day  of  injury  in  case  dis- 
ability continues  for  more  than  a  specified  period,  as  two, 
four,  or  eight  weeks.  Since  the  large  majority  of  accidents 
cause  disability  which  terminates  in  a  short  time,  it  is  impor- 
tant that  the  period  during  which  no  compensation  is  paid 
be  made  short.  A  short  waiting  period  is  also  an  inducement 
for  the  employer  or  insurance  company  to  render  the  best 
treatment  to  the  injured.  The  sooner  the  man  is  able  to 
return  to  work  the  less  the  compensation  will  be,  hence  small 
accidents  will  be  taken  care  of  in  a  much  better  way. 

(c)  Compensation  for  Total  Disability.  Injuries  for  which 
compensation  is  paid  may  be  divided  on  the  basis  of  their 
severity  into  three  large  groups,  namely  (i)  death;  (2)  partial 
disability  or  impairment  of  earning  capacity  such  as  the  am- 
putation or  loss  of  function  of  a  member;  and  (3)  total  dis- 
ability of  either  a  permanent  or  a  temporary  nature.  The 
vast  majority  of  accidents  result  in  total  temporary  disability. 


SOCIAL  INSURANCE  407 

The  best  American  laws,  of  which  the  acts  of  North  Dakota 
and  Ohio,  and  the  federal  statute  covering  federal  employees, 
are  examples,  award  to  the  disabled  workman  66%  per  cent, 
of  wages  (within  certain  limits)  during  the  entire  period  of  dis- 
ability. In  permanent  cases,  of  course,  this  means  benefits 
for  life.  The  limits  referred  to  are  in  North  Dakota  a  maxi- 
mum payment  of  $20  a  week  and  a  minimum  of  $6  a  week, 
except  that  if  full  wages  be  less  than  $6  full  wages  are  paid. 

Many  of  the  laws,  however,  contain  provisions  far  less  liberal. 
In  some  states  the  percentage  of  wages  paid  is  65,  60,  or  55 
per  cent.,  and  in  about  one-third  of  American  commonwealths 
which  have  compensation  laws  it  was  in  1920  still  as  low  as 
50  per  cent.  The  weekly  maximum,  also,  is  often  lower  than 
in  North  Dakota,  being  sometimes  $15,  or  in  a  few  cases  $10. 
Besides  granting  a  low  percentage  of  wages,  frequently  held 
down  by  a  weekly  maximum  limit,  most  states  still  further 
restrict  the  total  amount  to  be  recovered,  either  directly  or 
— what  amounts  to  the  same  thing — by  stating  a  maximum 
period  beyond  which  compensation  is  no  longer  payable. 
Time  limitations  for  total  permanent  disability  vary  from  208 
to  550  weeks,  and  money  limitations  from  $4,000  to  $6>ooo. 

The  reason  for  these  unprogressive  restrictions  is  not  hard 
to  find.  It  is  that  our  compensation  laws  are  based  upon  the 
idea  of  merely  keeping  the  injured  and  his  family  from  star- 
vation, rather  than  upon  the  principle  of  replacing  wage  loss. 
The  common  50  per  cent,  scale  is  obviously  insufficient  to 
keep  a  family  from  hardship.  Despite  spectacular  instances 
to  the  contrary,  most  workmen  hardly  receive  when  employed 
enough  to  pay  their  current  living  expenses,  and  when  their 
income  is  cut  in  two  these  expenses  cannot  be  met.  The  low 
weekly  maxima  fixed  in  many  states  intensify  the  depriva- 
tion. A  family  whose  head  receives  ordinarily  $40  or  $50  a 
week  has  a  fairly  high  standard  of  living;  and  if  in  case  of 
accident  the  maximum  recoverable  is  limited  to  $10  or  $15 
weekly,  that  standard  cannot  be  maintained.  This  is  espe- 
cially true  if  disability  is  of  long  continuance,  yet  some  states 
which  fix  a  $12  maximum  for  the  first  400  weeks  of  disability 
reduce  that  sum  thereafter  in  some  instances  to  as  low  as  $5 
a  week. 

These  excessive  limitations  upon  the  amount  of  compensa- 


4o8       PRINCIPLES  OF  LABOR  LEGISLATION 

tion  work  considerable  hardship  to  the  cases  which  they 
affect,  and  should  not  be  included  in  the  law  If  the  accident 
results  in  permanent  total  disability,  the  injured  should  receive 
two-thirds  of  his  wages  for  life.  Nothing  short  of  this  will 
bring  the  proper  relief.  With  a  two-thirds  normal  income  the 
family  will  be  deprived  of  some  things,  but  still  the  amount 
is  sufficient  to  maintain  about  the  same  standard  of  living, 
and  even  in  the  lower-paid  classes  to  keep  the  family  from  de- 
pendence on  charity.  Under  our  system  of  laws  children  are 
required  to  go  to  school  until  a  certain  age,  which  means 
considerable  expense.  If  in  case  of  accident  causing  a  total 
loss  of  earning  capacity  no  proper  compensation  is  provided, 
or  if  the  compensation  period  is  limited,  it  frequently  means 
disintegration  of  the  family. 

(d)  Compensation  for  Partial  Disability.  Compensation  for 
permanent  partial  disability  is  based  in  most  states  upon  a 
fixed  schedule  of  a  certain  number  of  weeks'  benefit  for  each 
specific  dismemberment,  such  as  fifteen  weeks  for  the  loss  of 
a  little  finger,  125  weeks  for  an  eye,  or  215  weeks  for  a  leg. 
While  this  system  of  a  fixed  charge  for  each  dismemberment, 
regardless  of  its  effect  upon  earning  power,  is  easily  adminis- 
tered, it  is  open  to  serious  criticism  on  the -grounds  of  arbitrari- 
ness and  injustice.  A  system  like  that  in  use  in  California,  in 
which  partial  disability  is  defined  as  a  proportion  of  the  loss 
of  earning  power,  is  more  difficult  to  administer,  but  results 
in  more  equitable  settlements.  In  response  to  the  criticism 
that  the  number  of  weeks'  benefit  allowed  by  the  fixed  injury 
schedule  is  too  small  there  has  been  a  tendency  to  increase 
the  specific  periods,  but  the  best  thought  is  now  against  this 
method  and  in  favor  of  indemnifying  on  the  basis  of  the  loss 
of  earning  power.  For  this  purpose  and  to  facilitate  admin- 
istration California  has  worked  out  a  schedule  showing  the 
percentage  of  impairment  in  earning  capacity  which  each 
specific  injury  may  be  expected  to  cause  to  a  worker  of  any 
given  age  in  any  given  occupation  in  the  state.  If  the  injured 
suffering  a  permanent  impairment  of  earning  capacity  is  a 
minor,  his  compensation  should  be  increased  until  he  reaches 
the  age  of  twenty-one,  as  his  wages  would  probably  have 
increased  had  he  not  been  injured.  Several  of  our  states 
already  take  cognizance  of  this  fact,  and  the  number  is  growing. 


SOCIAL  INSURANCE  409 

(e)  Compensation  for  Death.  If  the  injury  results  in  death 
a  funeral  benefit  should  be  paid  in  all  cases,  whether  or  not 
the  deceased  had  dependents  entitled  to  compensation.  About 
$100  has  usually  been  regarded  as  sufficient  to  cover  all  essen- 
tial funeral  charges.  Some  states  have  laws  providing  funeral 
benefits  only  if  there  are  no  dependents  entitled  to  compensa- 
tion, but  most  grant  funeral  benefits  in  all  cases. 

Most  states  have  thus  far  not  been  very  liberal  in  prescribing 
the  amount  of  compensation  to  be  paid  to  dependents.  Very 
few  of  them  grant  pensions  to  widows  for  life  or  until  remar- 
riage. North  Dakota,  one  of  the  most  liberal  states  in  1920, 
prescribed  35  per  cent,  of  wages  for  the  widow  until  death  or 
remarriage  and  10  per  cent,  additional  for  each  child,  the  total 
not  to  exceed  66^  per  cent.  A  few  states  limit  the  death 
benefit  to  a  specified  monthly  amount,  such  as  $35  or  $50, 
while  others  set  a  maximum  for  the  total,  varying  from  $3,000 
to  $6,000. 

A  life  benefit  to  the  widow  and  additional  amounts  for  each 
child  up  to  the  age  of  eighteen  is  the  only  rational  system  to 
adopt.  Statistics  show  that  the  average  age  of  injured  work- 
men is  about  thirty-two  years.  A  young  family  which  loses 
its  supporter  at  such  an  age  cannot  exist  very  long  on  $3,000 
or  less.  So  small  an  amount  will  mean  that  the  family  must 
lower  its  standard  of  living,  and  that  the  children  will  not 
receive  the  proper  care  and  education.  Here  again  compen- 
sation is  regarded  more  in  the  light  of  a  means  of  preventing 
starvation  than  as  a  reimbursement  for  the  loss  of  earning 
power.  It  may  be  expected  that  in  the  future  more  and 
more  states  will  grant  to  the  widow  a  pension  for  life  or 
during  the  period  of  widowhood.  If  there  are  no  depend- 
ents, the  death  benefit  should  be  paid  to  a  special  fund  used 
for  the  purpose  of  rehabilitating  industrial  cripples.  This  last 
provision  is  found  in  a  few  laws,  but  if  there  are  no  de- 
pendents most  states  provide  for  funeral  benefit  only.  Full 
death  benefits  in  all  cases  would  tend  to  wipe  out  the  de- 
sirability to  employers  of  engaging  single  men  with  no  de- 
pendents, or  foreigners  if  the  law  excludes  non-resident  alien 
dependents.  To  what  extent  this  discrimination  is  practised 
is  difficult  to  discover. 

The  question  as  to  whether  alien  non-resident  dependents 


4io       PRINCIPLES  OF  LABOR  LEGISLATION 

should  be  entitled  to  death  benefit  has  been  considerably  dis- 
cussed, and  a  few  states  still  expressly  exclude  them.  In  a 
number  of  other  states  they  are  expressly  included,  and  else- 
where, as  no  mention  is  made  of  them,  they  are  apparently 
included  by  implication.  There  seems  to  be  little  justifica- 
tion for  excluding  non-resident  dependent;  if  our  industry 
has  been  responsible  for  the  loss  of  a  family  supporter,  due 
remuneration  should  be  made  regardless  of  nationality  or 
residence. 

Q  Rehabilitation.  Of  recent  years  compensation  for  in- 
juries has  come  to  mean  more  than  partial  reimbursement  for 
monetary  loss.  Considerations — perhaps  economic  in  their 
origin,  but  humane  in  their  outcome — have  led  to  the  view 
that  no  law  truly  compensates  for  injury  which  fails  to  re- 
habilitate. Rehabilitation  includes  all  that  can  be  done  by! 
surgery,  general  reeducation,  technical  retraining,  and  assist- 
ance in  finding  reemployment,  to  place  the  injured  worker  on] 
his  feet  again  as  a  self-supporting  citizen.  Eleven  states  had 
by  1920  made  provision  for  rehabilitation  of  their  industrial 
cripples. 

Plans  usually  call  for  cooperation  between  the  state  indus- 
trial accident  board,  the  state  educational  system,  and  the 
state  employment  service.  A  bill  to  grant  federal  aid  on  a 
basis  of  dollar  for  dollar  to  states  undertaking  to  rehabilitate 
industrial  cripples  was  passed  by  Congress  in  1920. 

G\  Method  of  Administration.  There  are  two  general  ways 
of  Iraministering  compensation  laws.  One  is  to  appoint  a  cen- 
tral board  with  general  powers  of  enforcing  the  law,  and  the 
other  is  to  create  no  machinery  for  the  administration  of  the 
act,  but  to  provide  that  all  questions  arising  shall  be  settled 
by  the  courts.  Of  the  states  having  laws  in  1920,  less  than  a 
quarter,  most  of  which  were  of  little  industrial  importance, 
had  no  central  administrative  body  and  left  the  administration 
to^the  courts.  All  other  states  have  adopted  the  central  ad- 
ministrative plan. 

Investigations  made  by  the  National  Civic  Federation  and 
the  American  Federation  of  Labor,1  and  by  the  American  As- 


1  Report  upon  Operation  of  State  Laws,  Senate  Document  No.  410. 
Congress,  2d  Session. 


SOCIAL  INSURANCE  411 

sociation  for  Labor  Legislation,1  as  well  as  by  the  United 
States  Bureau  of  Labor  Statistics,  indicate  that  the  adminis- 
trative board  plan  is  much  superior  to  the  court  procedure 
scheme.  The  first  two  studies  agreed  in  estimating  that  in 
New  Jersey  not  over  60  per  cent,  of  the  amounts  payable  under 
the  statute  were  being  paid,  and  the  report  of  the  Association 
for  Labor  Legislation  made  it  clear  that  the  court  procedure 
plan  was  mainly  responsible  for  this  defeat  of  the  legislative 
intent.  The  chief  flaws  in  the  court  system  were  pointed  out 
to  be  (i)  the  delay  of  court  procedure,  (2)  the  cost  of  court 
procedure,  and  (3)  the  unfitness  of  the  courts  for  the  settle- 
ment of  compensation  claims.  The  New  Jersey  statute  was 
subsequently  amended  to  provide  for  the  board  system  of 
administration. 

Prompt,  honest,  and  full  compensation,  and  medical  aid  as 
required,  are  the  vital  factors  in  bringing  relief  as  desired  by 
the  law,  and  to  achieve  these  purposes  a  central  board  with 
broad  powers  is  essential.  States  with  central  boards  having 
full  power  to  make  rules  and  regulations  require  receipts  to 
be  filed  showing  actual  payment  of  compensation,  and  since 
they  provide  for  arbitration  hearings  in  cases  of  dispute  there 
is  little  danger  of  fraud  and  deception  of  workmen,  arid  pay- 
ments are  promptly  made.  The  board  should  consist  of  three 
or  five  members  appointed  by  the  governor  and  should  have 
power  to  employ  necessary  assistants.  To  insure  their  ade- 
quate attention  to  the  responsible  duties  of  their  position,  its 
members  should  be  required  to  devote  their  entire  time  to 
its  work. 

^  Security  of  Payment.  In  order  to  protect  the  employer, 
as  well  as  the  workmen,  liability  under  the  compensation  laws 
is  commonly  covered  by  some  form  of  insurance.  Should 
several  of  his  men  meet  with  a  serious  accident  at  one  time, 
the  small  shop-owner  or  contractor  would  not  be  financially 
able  to  pay  the  compensation.  For  this  reason  most  states 
compel  employers  to  insure  their  risk  unless  they  can  give 
satisfactory  evidence  that  they  are  able  to  bear  losses  due  to 
accident  even  if  very  serious.  This,  of  course,  means  that 


1  "Three  Years  under  the  New  Jersey  Workmen's  Compensation  Law,". 
American  Labor  Legislation  Review,  March,  1915,  pp.  31-102. 


4i2       PRINCIPLES  OF  LABOR  LEGISLATION 

practically  all  small  employers  will  carry  insurance,  while 
many  large  companies  will  carry  their  risk  themselves. 

The  carrying  by  a  concern  of  its  own  risk  is  sometimes 
called  "self -insurance,"  and  in  addition  thereto  three  other 
methods  have  been  developed:  (i)  insurance  in  a  state  fund; 
(2)  insurance  in  a  stock  company;  and  (3)  insurance  in  a 
mutual  or  interinsurance  company. 

State  insurance  funds  are  based  on  the  principle  that  since 
the  state  by  the  passage  of  a  workmen's  compensation  act 
has  created  a  new  obligation  on  the  employer,  it  should  pro- 
vide him  with  the  means  of  fulfilling  it  economically.  Such 
funds  have  been  established  in  nearly  half  of  the  states,  in- 
cluding California,  New  York,  North  Dakota,  Ohio,  Oregon, 
and  Washington.  Sometimes  insurance  in  such  a  fund  is 
compulsory,1  while  some  other  states  permit  insurance  in 
authorized  private  companies.  Short  as  their  experience  has 
been,  the  success  of  the  efficiently  managed  state  fund  is 
undoubted.  The  New  York  state  fund  found  its  expenses  in 
its  first  six  months'  experience  to  be  only  17  per  cent,  of 
premiums,  and  even  this  low  proportion  was  cut  to  8.5  per 
cent,  during  1917.  Notwithstanding  its  rates  are  lower 
than  those  of  the  casualty  companies,  the  fund  has  several 
times  declared  dividends,  and  it  is  estimated  by  an  official 
investigating  commissioner  that  those  New  York  employers 
who  have  selected  state  insurance  have  saved  $4,000,000  in 
four  and  one-half  years.2  The  proportion  of  premiums  ab- 
sorbed by  administrative  expenses  is  even  less  in  the  case  of 
exclusive 'state  funds  than  in  the  case  of  competitive  funds. 
By  1917  the  exclusive  state  funds  in  Oregon,  West  Virginia, 
and  Wyoming  had  reduced  their  expense  ratios  to  5.4,  4.6, 
and  2.6  per  cent,  respectively.  The  Ohio  fund  in  1918 
had  achieved  an  expense  ratio  as  low  as  3.5  per  cent,  and 
claimed  to  have  saved  employers  over  $6,000,000  within  the 
year. 

The  funds  of  Ohio,  New  York,  and  Pennsylvania  have  been 
subjected  to  critical  examination  by  official  commissions.  The 
consulting  actuary  who  was  called  in  an  advisory  capacity 

»By    1920,   in   Nevada,   North   Dakota,    Ohio,    Oregon,   Washington, 
Wyoming. 
2  Report  of  Investigation  by  Jeremiah  F.  Connor,  1919,  p.  26. 


SOCIAL  INSURANCE  413 

by  all  three  commissions  says,  as  a  result  of  his  examination 
into  the  accounts  and  administrative  procedure  of  the  funds: 
"State  funds  for  workmen's  compensation  insurance  are 
shown  by  my  investigations  to  be  extraordinarily  successful. 
They  are  financially  sound.  They  are  operated  on  the  strictest 
actuarial  principles.  They  reduce  management  expenses  to 
a  minimum.  They  have  made  steady  progress  even  under 
competitive  conditions.  They  permit  increasingly  liberal 
benefits  for  injured  workers  and  their  families.  They  result 
in  enormous  savings  to  industry."  x 

Stock  companies  carry  on  business  for  the  profit  of  their 
stockholders.  As  a  consequence  of  their  large  business  solicit- 
ing organization,  comprising  thousands  of  agents,  their  manag- 
ing expenses  are  excessively  high.  In  Wisconsin  in  1914  the 
operating  expenses  of  these  companies  were  38  per  cent,  of 
earned  premiums,  or  79  per  cent,  of  compensation  benefits. 
The  average  expense  ratio  of  casualty  companies  in  1919  was 
about  37.5  per  cent. 

Mutual  insurance  companies  seek  the  protection  of  their 
own  members,  who  are  the  policy  holders.  They  do  not  need 
the  large,  expensive  organization  which  a  stock  company  must 
have,  and  therefore  their  managing  expenses  are  lower. 
Mutual  insurance  is  insurance  at  actual  cost,  any  excess  of 
premium  remaining  the  property  of  the  policyholder  and  being 
refunded  in  the  form  of  dividends.  In  the  state  last  cited 
the  operating  expenses  of  these  companies  were  only  18  per 
cent,  of  earned  premiums.  As  a  result  of  these  low  operating 
expenses  mutuals  can  sell  insurance  at  about  25  per  cent, 
lower  rates  than  stock  companies.  A  strong  feature  of  the 
mutual  insurance  method,  provided  it  be  made  general  and 
brought  under  close  supervision,  is  the  added  inducement  to 
employers  to  do  their  own  factory  inspection.  Such  volun- 
tary inspection,  if  stimulated  by  the  financial  inducement  of 
reduced  insurance  rates  for  safer  conditions,  has  generally 
been  found  even  more  effective  than  state  inspection. 

The  premiums  charged  for  workmen's  compensation  insur- 
ance obviously  depend  greatly  upon  the  benefits  provided 

1  Miles  M.  Dawson,  "State  Accident  Insurance  in  America  a  Demon- 
strated Success,"  American  Labor  Legislation  Review,  March,  1920, 
pp.  8-14. 


4i4       PRINCIPLES  OF  LABOR  LEGISLATION 

by  the  compensation  act,  and  thus  we  have  different  rates  in 
the  various  states.  Another  factor  which  largely  determines 
the  insurance  rate  is  the  hazard  of  the  industry.  Thus  we 
have  one  rate  for  logging,  one  for  machine  shops,  one  for 
clerical  pursuits,  and  so  on.  But  even  in  establishments  of 
the  same  industrial  group  widely  different  hazards  will  be 
found.  One  company  may  perhaps  take  great  interest  in 
safety  work,  while  another  does  not.  The  former  would  be 
a  better  risk  than  the  latter  and  is  entitled  to  a  lower  rate. 
This  allowance  is  accomplished  under  a  merit  rating  system. 
Instead  of  one  flat  rate  for  an  entire  industry,  this  system 
seeks  to  adjust  the  rate  of  each  employer  to  the  hazard  of  his 
particular  establishment.  A  schedule  of  credits  and  charges 
is  provided,  so  that  the  employer  receives  credit  for  conditions 
tending  to  reduce  or  prevent  accidents,  and,  conversely,  he 
is  charged  for  conditions  conducive  to  accidents. 

The  feature  of  accident  prevention  just  alluded  to  is  too 
often  underestimated  when  discussing  compensation  laws. 
After  all,  to  prevent  the  injury  is  of  greater  significance  than 
to  provide  compensation  for  it;  accident  prevention  is  the 
greatest  feature  of  a  comprehensive  accident  indemnity 
plan. 

The  accident  prevention  or  safety  movement  has  spread 
rapidly  in  the  last  few  years,  and  the  chief  factor  in  this  de- 
velopment is  the  growing  correlation  between  accident  pre- 
vention and  compensation.  State  agencies  are  usually  effec- 
tive in  accident  prevention  work  to  the  degree  that  they 
secure  the  cooperation  of  employers  and  of  workmen.  Their 
main  function  consists  in  educating  these  two  in  methods  of 
safety.  State  agencies  can  order  the  application  of  mechani- 
cal safeguards.  Their  rules  afford  standards,  But  their  inspect- 
ors can  do  but  little  in  comparison  with  what  the  employer 
and  employee  can  do,  under  the  stimulus  of  an  adequate 
compensation  system. 

Neither  insurance  companies  nor  state  funds  have  power 
to  compel  the  safeguarding  of  machinery,  but  they  can  fre- 
quently attain  the  same  end  by  increasing  or  reducing  the 
insurance  rates  under  the  merit  rating  system  previously  dis- 
cussed. Many  companies  now  have  a  force  of  inspectors  who 
investigate  the  risk  before  the  final  rate  is  computed.  During 


SOCIAL  INSURANCE  415 

1914  the  amount  expended  on  factory  inspection  and  accident 
prevention  by  insurance  companies  in  Wisconsin  equaled  2.6 
per  cent,  of  the  total  earned  premium.  What  has  been  ac- 
complished through  the  cooperation  of  these  agencies  cannot 
be  determined  because  accident  statistics  in  this  country  have 
never  been  adequately  compiled  in  a  comparable  manner  until 
recent  years.  The  indications,  however,  are  that  the  number 
of  fatalities  and  serious  injuries  is  gradually  being  reduced. 
C.  W.  Price,  general  manager  of  the  National  Safety  Council, 
states  that  during  the  five  years  when  he  was  connected  with 
the  Wisconsin  Industrial  Commission  accidental  deaths  were 
reduced  61  per  cent.  "One-half  of  the  credit  for  this  accom- 
plishment," he  says,  "must  be  given  to  the  stimulus  which 
the  compensation  law  gave  to  the  whole  safety  movement."  l 
In  order  to  secure  more  satisfactory  industrial  accident  and 
occupational  disease  statistics  for  purposes  of  prevention  as 
well  as  for  rate-making,  a  number  of  government  bureaus  and 
interested  organizations  have  jointly  engaged  in  working  out 
uniform  industry  classifications  and  uniform  methods  of  re- 
porting.2 If  the  classifications  agreed  upon  are  finally  adopted 
in  all  states,  the  occupational  accident  and  disease  statistics 
will  be  comparable,  and  a  vast  amount  of  valuable  information 
will  then  be  available. 


2.  HEALTH  INSURANCE 

The  development  of  machinery,  the  expansion  of  industry, 
and  the  growth  of  the  wage-earning  class  have  not  only  brought 
into  existence  the  problem  of  industrial  accident,  but  have 
also  added  importance  to  the  question  of  the  wage-earner's 
ill  health.  Since  a  large  amount  of  the  worker's  time  and 
energy  are  expended  in  the  workshop,  it  is  natural  that  in- 
dustry and  the  conditions  connected  with  it  are  among  the 
important  factors  seriously  affecting  his  health.  Foresight, 
consequently,  has  led  to  the  introduction  of  health  insurance, 
which  is  gradually  being  extended  to  cover  all  occupations, 
even  those  in  which  the  risk  to  health  is  less  obvious. 


1  American  Labor  Legislation  Review,  March,  1920,  p.  26. 

2  See  "Reporting,"  pp.  325-332. 


416       PRINCIPLES  OF  LABOR  LEGISLATION 

(i)  Early  Steps  in  Health  Insurance 

The  importance  of  adequate  provision  in  case  of  illness  or 
invalidity  was  recognized  by  the  workers  long  before  the  era 
of  social  insurance.  As  early  as  the  middle  ages  the  insuffi- 
ciency of  individual  action  was  realized,  and  a  more  satis- 
factory arrangement,  that  of  insurance,  was  initiated  by  the 
mediaeval  gilds.  Under  these  early  plans  insurance  was 
purely  voluntary  and  the  workers  had  to  bear  the  full  cost. 
This  optional  unassisted  form  of  health  insurance  still  exists 
in  many  civilized  countries.  In  this  country  it  is  provided 
to  a  limited  extent  by  trade  unions,  fraternal  societies,  estab- 
lishment funds,1  and  insurance  companies.  Except  for  the 
device  of  "group  insurance,"  by  which  a  few  large  concerns 
have  insured  their  employees  without  charge  to  them  in  a 
commercial  company,  it  is  the  only  form  of  health  insurance 
so  far  in  operation  here.  But  under  optional  insurance  most 
workers  are  either  unwilling  or  unable  to  make  regular  out- 
lays for  the  premium,  and  thus  are  left  without  the  much- 
needed  insurance  protection.  Other  weaknesses  frequently 
charged  against  the  system  are  inefficiency  of  management, 
inadequacy,  lack  of  state  supervision,  financial  instability, 
and,  in  the  case  of  profit-making  insurance  companies,  exces- 
sive cost. 

A  remedy  for  these  defects  was  offered  in  the  device  of 
government  subsidies  and  control.  This  measure  marked  the 
beginning  of  the  second  stage  in  the  history  of  health  insur- 
ance and  directly  prepared  the  way  for  the  compulsory  prin- 
ciple. The  aim  of  government  subsidies  is  to  relieve  the 
worker  from  a  part  of  the  burden  and  thus  to  stimulate  in- 
surance; the  aim  of  control  is  to  secure  efficient  management. 
Subsidies  are  usually  given  to  the  so-called  recognized  societies, 
that  is,  health  insurance  organizations  which  answer  certain 
requirements  and  submit  to  government  regulations. 

The  system  of  subsidized  insurance  was  first  introduced  in 
Sweden  in  1891,  and  existed  in  1920  in  six  countries:  Sweden, 
Denmark,  Belgium,  France,  Iceland,  and  Switzerland.  The 


1  Funds  organized  "among  the  workers  in  one  plant  or  establishment, 
usually  under  the  control  of  the  employer. 


SOCIAL  INSURANCE  417 

financial  assistance  granted  in  these  countries  and  the ''gov- 
ernment supervision,  potent  though  they  are,  cannot  be  ex- 
pected to  be  a  very  vigorous  stimulus  to  insurance  among  the 
2lasses  most  in  need  of  it.  Obviously  compulsory  insurance, 
transferring  a  considerable  part  of  the  burden  to  industry  and 
including  in  the  system  those  workers  who  most  require  this 
protection,  is  a  more  effective  way  of  meeting  the  need. 

(2)  Compulsory  Health  Insurance 

Long  before  1883,  the  first  date  in  the  official  history  of 
social  insurance,  there  existed  in  several  states  of  Europe 
insurance  associations  in,  which  the  elements  of  compulsory 
state  supervised  insurance  were  found.  It  was  left,  however, 
for  Germany  first  to  gather,  in  the  year  mentioned,  these  dis- 
persed components  into  one  coordinated  unit.  By  1920  legis- 
lation had  been  enacted  in  Austria,  Hungary,  Luxemburg,  Nor- 
way, Servia,  Great  Britain,  Russia,  Roumania,  Holland,  Portu- 
gal, and  Czechoslovakia,  and  in  Poland  through  a  decree  sub- 
ject to  ratification  by  the  legislature.  In  several  other  countries, 
including  Italy,  Belgium,  Sweden,  and  America,  the  principle 
of  compulsory  health  insurance  was  under  discussion. 

Health  insurance  legislation  has  generally  recognized  the 
existing  mutual  sick  benefit  funds  of  various  kinds,  such  as 
fraternal  societies,  trade  unions,  and  establishment  funds, 
which  were  allowed  to  continue  business,  provided  they  com- 
plied with  the  regulations  imposed  upon  them  by  the  new  law. 
In  some  countries  the  law  also  brought  into  existence  new 
insurance  associations,  the  local  sick  funds,  for  the  insurance 
of  persons  not  claiming  membership  in  any  other  society. 

The  scope  of  health  insurance  legislation  varies  in  the  dif- 
ferent countries.  The  early  legislation  was  rather  restricted, 
but  later  amendments  have  in  many  cases  increased  the  num- 
bers covered.  Thus,  for  example,  the  German  legislation 
which  covered,  in  1885,  4,671,000  persons,  or  10  per  cent,  of 
the  total  population,  was  in  1911  amended  to  include  14,- 
000,000,  or  22  per  cent,  of  the  population,  and  its  scope  was 
further  broadened  after  the  revolution  of  1918.  In  Norway 
all  workers  are  included  whose  earnings  are  below  a  specified 
amount.  The  income  limits  were  raised  in  1915. 

27 


4i8       PRINCIPLES  OF  LABOR  LEGISLATION 

The  noteworthy  act  of  Great  Britain,  passed  in  1911,  in- 
cludes within  its  scope  all  manual  laborers  between  sixteen 
and  seventy.  Persons  not  employed  at  manual  labor,  such 
as  clerks  and  agents,  are  compelled  to  insure  if  their  earnings 
are  less  than  $1,250  a  year.  Credit  should  be  given  to  the 
legislators  and  administrators  who  found  it  possible  to  include 
from  the  outset  both  casual  workers  and  homeworkers,  even 
though  this  necessitated  special  arrangements  for  collecting 
contributions.  Within  the  insured  groups,  persons  may  be 
exempted  if  they  can  prove  that  they  have  a  regular  income 
from  other  sources  equal  to  $130  a  year,  or  that  they  are  not 
dependent  for  a  livelihood  upon  the  earnings  of  their  insured 
occupation.  In  addition,  certain  classes  of  occupations  are 
excluded,  such  as  employment  under  the  crown,  because  the 
terms  of  employment  already  offer  provision  in  case  of  ill- 
ness. The  exceptions  have  proven  numerically  unimportant, 
so  that  during  the  first  year  of  operation  13,742,000  individ- 
uals were  insured,  or  nearly  30  per  cent,  of  the  total  popula- 
tion.1 

Recent  European  legislation  tends  to  be  even  more  inclusive. 
For  example,  in  Czechoslovakia  the  law  embraces  all  persons 
employed  under  a  contract  of  hire  or  apprenticeship,  regard- 
less of  the  remuneration  received.  In  Sweden  the  recom- 
mendations urge  insurance  for  all  with  incomes  below  a 
specified  limit,  without  regard  to  whether  they  are  employed 
or  not.  Under  these  provisions  it  is  estimated  that  three- 
fifths  of  the  population  will  be  insured 

The  cost  of  insurance  is  usually  distributed  between  the 
worker  and  the  employer,  and  in  some  countries  the  govern- 
ment also  contributes  a  share.  By  this  device  the  employer 
is  compelled  to  bear  some  portion  of  the  cost  of  sickness  among 
his  employees,  and  the  worker  receives  larger  benefits  than  he 
could  purchase  unaided.  A  frequent  distribution  of  the  costs 
in  continental  legislation  places  two-thirds  of  the  cost  upon 
the  insured  worker  and  one-third  upon  his  employer.  In 
Norway  the  worker  contributes  six-tenths,  the  employer  one- 
tenth,  the  commune  one-tenth,  and  the  state  the  remaining 

1  For  an  excellent  study  of  the  actual  operation  of  the  British  act  and 
of  its  administrative  problems,  see  The  New  Statesman;  "Special  Supple- 
ment on  the  Working  of  the  Insurance  Act,"  March  14  1914 


SOCIAL  INSURANCE  419 

two-tenths.  In  continental  legislation  the  premium  is  fre- 
quently calculated  as  a  percentage  of  wages.  The  employees 
are  divided  into  wage  groups,  and  the  premiums  and  benefits 
vary  with  an  increase  in  the  worker's  income.  Great  Britain, 
however,  has  not  followed  the  continental  practice,  but  has 
adopted  a  uniform  rate  of  contributions,  regardless  of  wage 
differences.  The  insured  male  worker  pays  weekly  8  cents, 
the  female  worker  6  cents;  in  either  case  the  employer  adds 
6  cents  and  the  state  4  cents.  To  mitigate  any  hardship  on 
the  low-paid  worker,  special  provisions  are  made  for  those 
earning  less  than  at  the  rate  of  62^  cents  a  day,  whereby 
the  worker's  cpntribution  is  diminished,  and  that  of  the  em- 
ployer and  state  increased. 

In  return  for  their  contributions,  workers  usually  receive 
both  a  money  benefit  and  medical  care.  The  cash  benefits 
paid  in  time  of  sickness  are  not  equal  to  the  full  wage,  but  are 
50  per  cent,  in  Germany,  and  60  per  cent,  in  Norway  and 
Czechoslovakia.  England  has  been  consistent  with  her  flat 
rate  contributions  and  has  adopted  a  system  of  uniform 
benefits  of  $2.50  a  week  for  men,  and  $1.87  a  week  for  women.1 
In  general,  benefit  is  not  allowed  for  the  first  three  days  of 
illness,  and  is  paid  for  only  a  limited  number  of  weeks  in  a 
year — usually  for  twenty-six  weeks,  as  in  England.  Benefit 
is  usually  made  conditional  upon  a  doctor's  certificate  stating 
that  the  applicant  is  incapable  of  work.  When  the  attending 
physician  certifies  that  the  patient  has  recovered,  sick  benefit 
ceases. 

The  German  and  British  acts  differ  in  the  character  of  the 
disabilities "  which  they  include.  Germany  is  typical  of  the 
countries  which  have  included  "invalidity" — chronic  illness 
or  impairment  of  earning  capacity — in  the  old  age  insurance 
act,  so  that  only  temporary  illnesses  are  covered  by  health 
insurance.  Great  Britain,  on  the  other  hand,  has  included 
"invalidity"  in  the  provision  for  health  insurance.  The  in- 
validity contemplated  by  the  British  legislators,  however,  is 

1  Early  in  1920  the  British  government  introduced  a  bill  to  increase 
the  sick  benefits  of  men  to  $3.75  a  week  and  those  of  women  to  $3,  to 
raise  the  disablement  benefit  of  both  men  and  women  to  $1.87  and  the 
maternity  benefit  to  $10.  To  help  meet  this  increase  of  benefits,  the  bill 
proposed  raising  the  contributions  of  both  men  and  women  by  6  cents, 
of  which  the  workers  would  pay  2  cents  and  the  employers  4  cents. 


420       PRINCIPLES  OF  LABOR  LEGISLATION 

limited  to  incapacity  for  work  because  of  disease  or  disable- 
ment, as  distinguished  from  reduction  in  earning  power.  The 
British  grouping  of  invalidity  with  sickness  benefit  is  probably 
due  to  the  existence  of  a  state  system  of  old  age  pensions.  As 
the  recipients  do  not  contribute  to  the  pension,  it  was  desirable 
to  make  provision  for  invalidity  in  the  health  insurance  sys- 
tem, which  is  contributory.  The  British  invalidity  benefit 
consists  of  a  weekly  payment  of  $1.25  as  long  as  incapacity 
for  work  continues,  though  it  ceases  when  the  beneficiary 
reaches  the  age  of  seventy  and  becomes  entitled  to  an  old  age 
pension. 

Medical  attendance  is  furnished  by  many  insurance  systems, 
including  those  of  Germany,  Great  Britain,  and  Norway.  If 
an  insurance  system  is  to  accomplish  its  ultimate  object  of 
improving  the  health  of  the  workers,  it  is  of  great  importance 
that  they  receive  treatment  whereby  they  may  be  restored  to 
health.  Furthermore,  it  is  financially  important  to  the  in- 
surance funds  that  sick  members  shall  recover  as  quickly  as 
possible  and  so  reduce  the  amounts  expended  upon  sick 
benefit. 

The  medical  care  provided  usually  includes  not  only  physi- 
cians' services,  but  also  hospital  treatment  when  needed  and 
the  necessary  medicines  and  appliances,  such  as  spectacles, 
trusses,  and  crutches.  In  Great  Britain,  where  medical  care 
was  from  the  beginning  less  liberal  and  where  specialist  ser- 
vices and  hospital  care  were  not  provided,  the  inadequacy 
at  once  became  manifest  and  by  1920  a  strong  movement  for 
more  liberal  benefits  was  under  way. 

In  providing  medical  care  for  insured  persons,  two  funda- 
mental safeguards  to  the  economic  interest 'of  the  medical 
profession  have  developed  which  are  observed  in  the  best 
practice,  namely,  free  choice  of  doctor  by  the  patient,  and 
collective  agreements  between  the  doctors  and  the  adminis- 
trative authorities.  Free  choice  of  doctor  prevents  insurance 
practice  from  being  monopolized  by  a  few  physicians  and  also 
permits  the  insured  to  apply  for  treatment  to  practitioners  in 
whom  they  place  confidence.  Collective  agreements  between 
the  doctors  and  the  authorities  have  the  same  value  for  the 
medical  profession  that  collective  bargaining  has  for  organ- 
ized workers.  In  Great  Britain,  for  example,  free  choice  of 


SOCIAL  INSURANCE  421 

doctor  is  recognized  by  legislation,  while  the  more  detailed 
arrangements  with  the  doctors  are  made  between  the  medical 
men  and  the  local  insurance  committees.  In  practice  the 
details  of  the  agreement  are  settled  by  negotiations  between 
authorized  representatives  of  the  physicians  and  of  the  insur- 
ance authority  for  the  entire  country.  Various  methods  of 
remunerating  the  physician  have  been  adopted.  While 
doctors  generally  urge  payment  by  the  visit,  the  system  of 
"capitation,"  or  a  lump-sum  payment  for  each  person  for 
the  year,  has  been  adopted  in  Great  Britain  and  is  pre- 
ferred by  the  physicians.  In  some  other  countries  a  com- 
bination of  the  two  principles  is  effected  by  setting  aside 
for  the  payment  of  medical  services  a  definite  sum  for  each 
insured  person  for  the  year  and  distributing  this  amount 
among  the  doctors  upon  the  basis  of  the  actual  services 
rendered  by  each. 

In  the  organization  of  the  carriers  of  insurance  each  coun- 
try has  adapted  itself  to  existing  conditions.  Germany  found 
already  in  existence  mutual  aid  funds  and  an  effective  system 
of  compulsory  insurance  among  miners.  The  former  it  al- 
lowed to  serve  as  a  substitute  for  compulsory  insurance, 
providing-  that  employers  might  be  exempted  from  contrib- 
uting for  workers  so  insured;  it  also  permitted  establish- 
ment funds,  under  certain  conditions,  to  carry  the  insurance. 
The  system  was,  however,  based  in  the  main  on  self-governing 
local  mutuals,  organized  by  the  law,  which  it  has  been  the 
policy  to  encourage,  so  that  they  are  now  overwhelmingly 
predominant. 

Great  Britain  built  its  insurance  system  around  the  volun- 
tary friendly  societies,  utilizing  their  organization  and  per- 
mitting them  to  establish  separate  sections  for  national  in- 
surance. Accordingly  many  societies  have  both  a  "private" 
and  a  "state"  section.  In  contrast  to  the  German  method, 
the  insured  are  not  grouped  according  to  trade  or  locality, 
but  are  given  unrestricted  choice  of  society.  As  a  result  of 
this  freedom,  the  members  of  some  of  the  large  societies  are 
distributed  throughout  the  kingdom  and  through  various  in- 
dustries. Segregation  by  locality,  and  in  some  large  cities 
by  trade,  which  is  not  possible  under  the  British  system,  has 
many  practical  and  technical  advantages,  such  as  more  pre- 


422       PRINCIPLES  OF  LABOR  LEGISLATION 

cise  distribution  of  the  risk  and  greater  ease  of  adminis- 
tration. 

The  methods  of  establishing  security  of  payments  in  the 
two  countries  are  quite  different.  In  Germany  the  dues  are 
calculated  so  as  to  cover  the  current  expenditure  on  benefits 
and  to  accumulate  a  small  reserve  fund.  It  is,  however,  a 
recognized  fact  that  sickness  increases  with  age  and  that  any 
voluntary  fund  organized  on  this  basis  would  be  compelled 
to  increase  its  dues  as  the  members  advanced  in  years  in  order 
to  cover  the  increasing  costs — unless  the  fund  is  able  to 
attract  a  sufficient  number  of  young  lives.  These  younger 
members,  paying  the  same  dues  as  the  older  members,  do 
not  claim  the  same  amount  of  sick  benefit,  hence  from  their 
contributions  a  surplus  would  accrue  which  could  be  devoted 
to  making  up  the  deficit  caused  by  the  older  members.  This 
system  is  practicable  in  Germany,  since  each  local  or  trade 
society  is  practically  assured  of  a  due  proportion  of  young 
lives  which  will  pay  for  the  older  members. 

In  Great  Britain  the  contributions  are  calculated  so  that  the 
surplus  accumulated  during  the  early  life  of  each  worker  may 
be  applied  for  his  own  benefit  in  later  years.  That  is.  con- 
tributions are  not  calculated  on  the  simple  basis  of  covering 
expenditures,  but  upon  the  basis  of  covering  the  estimated 
liability  for  the  average  person  throughout  life.  This  involves 
the  accumulation  of  an  "actuarial  reserve"  for  each  insured 
person.  This  method  of  financing  has  not  been  satisfactory 
in  Great  Britain,  where  it  has  been  combined  with  a  flat  rate 
of  premium  and  free  choice  of  society. 

(j)  Maternity  Insurance 

Insurance  provision  for  the  needs  of  mothers  at  the  time  of 
childbirth  is  found  in  many  countries.  By  1920  such  pro- 
vision was  made  through  compulsory  health  insurance  in 
twelve  countries,  through  compulsory  maternity  insurance  in 
one,  through  state  aided  voluntary  sickness  insurance  in  five, 
and  through  state  grants  in  three.1 

1  For  summaries  of  some  of  these  laws  and  their  operation,  see  United 
States  Children's  Bureau,  Publication  No.  57,  "Maternity  Benefit  Sys- 
tems in  Certain  Foreign  Countries,"  Henry  J.  Harris,  1919. 


SOCIAL  INSURANCE  423 

In  France,  Sweden,  Denmark,  Belgium,  and  Switzerland, 
government  grants  are  made  to  sickness  societies  which  vol- 
untarily provide  maternity  benefits.  In  France,  special  socie- 
ties have  been  organized  for  the  purpose.  In  Sweden  and 
Switzerland  the  government  subsidizes  approved  sickness  in- 
surance carriers  and  gives  an  especially  liberal  grant  toward 
meeting  the  expenditure  for  maternity  care,  thus  trying  to 
encourage  provision  for  this  need.  In  Switzerland  the  federal 
legislation  for  voluntary  insurance  may  be  made  compulsory 
by  the  individual  communes  and  cantons.  In  Belgium  and 
Denmark  government  subsidies  are  given  sick  funds  which 
provide  maternity  care  among  their  benefits. 

The  twelve  countries  which  in  1920  provided  maternity 
benefits  as  part  of  compulsory  health  insurance  legislation 
include  Great  Britain,  Germany,  Luxemburg,  Holland,  Rou- 
mania,  Servia,  Austria,  Hungary,  Czechoslovakia,  Poland  (by 
decree),  Russia,  and  Norway.  The  benefits  thus  provided  are 
available  for  insured  women.  In  some  countries,  as  in  Great 
Britain,  Holland,  and  Roumania,  a  money  benefit  only  is 
provided,  but  more  frequently  both  cash  and  medical  care 
are  furnished.1  The  cash  maternity  benefit  is  usually  equal 
to  the  regular  cash  sick  benefit,  varying  from  50  per  cent,  to 
the  full  amount  of  the  basic  wage.  The  period  during  which 
the  cash  benefit  is  paid  varies  from  four  weeks  up  to  the  entire 
period  of  incapacity  for  work.2  Most  frequently,  however, 
benefit  is  paid  during  the  six  weeks  following  confinement,3 
with  varying  periods  before  confinement.  The  legislation  of 
a  few  countries  4  provides  an  additional  allowance — a  nursing 
benefit — during  a  limited  period,  provided  the  mother  nurses 
her  child. 

Health  insurance  legislation  in  some  countries  5  also  makes 
provision  for  the  uninsured  wife  of  an  insured  man,  usually 
for  medical  care  at  confinement.  In  addition  to  the  medical 
qare  of  uninsured  women,  Norwegian  legislation  also  provides 


1  Austria,  Hungary,  Czechoslovakia,  Servia,  Poland,  Luxemburg,  and 
Norway. 

2  Holland. 

3  Germany,    Austria,    Roumania,    Czechoslovakia,    Poland,    Norway, 
Russia,  and  Servia. 

4  Austria,  Roumania,  Czechoslovakia,  Poland,  and  Germany. 
6  Great  Britain,  Hungary,  Norway,  Servia,  and  Germany. 


424       PRINCIPLES  OF  LABOR  LEGISLATION 

them  with  a  modest  cash  benefit.  Great  Britain  has  departed 
from  the  continental  developments  and  provides  a  cash  benefit 
of  $15  for  an  insured  married  woman  (regardless  of  whether 
or  not  her  husband  is  insured),  $7.50  for  the  uninsured  wife  of 
an  insured  man,  and  $7.50  for  an  insured  unmarried  mother. 
An  insured  woman  unable  to  work  during  pregnancy  is  en- 
titled to  her  usual  cash  sickness  benefit. 

The  war  with  its  emphasis  upon  the  importance  of  adequate 
care  for  mothers  and  young  children  has  stimulated  even  more 
extended  provisions.  In  Germany,  during  the  conflict,  ma- 
ternity provisions  voluntarily  undertaken  by  the  funds  in 
addition  to  the  required  six  weeks'  maternity  benefit  were 
curtailed,  and  an  extensive  system  of  maternity  grants  financed 
partly  by  the  state  but  administered  by  the  insurance  funds 
was  substituted.  In  September,  1919,  Germany  placed  the 
extended  provision  for  maternity  care  upon  a  permanent 
legal  basis,  decreeing  that  the  war  maternity  benefits  should 
cease  with  the  resumption  of  peace.  This  legislation  pro- 
vides for  a  lump  sum  of  $11.90  to  meet  the  expenses  of  con- 
finement; for  $5.95  to  meet  expenses  for  the  treatment  of 
pregnancy  complications,  if  needed;  for  a  maternity  benefit, 
equal  to  the  sick  benefit,  payable  for  ten  weeks  of  which  at 
least  six  shall  follow  confinement;  and  for  a  nursing  benefit, 
equal  to  one-half  the  sickness  allowance,  payable  for  twelve 
weeks  after  confinement  if  the  mother  nurses  her  child.  These 
benefits  are  allowed  both  to  insured  women,  and  to  uninsured 
wives  and  daughters  of  insured  men,  living  in  the  same  house- 
hold with  them.  Employers  of  domestic  servants  or  farm 
laborers  who  are  not  insured  are  required  to  provide  the 
same  benefits  for  women  employees  and  the  wives  and  daugh- 
ters of  their  men  employees.  In  addition,  women  of  small 
means,  who  are  not  insured,  receive  maternity  benefits  from 
the  treasury. 

In  Great  Britain  the  emphasis  was  laid  upon  more  extended 
provision  for  consultation  centers  where  mothers  might  go 
for  advice  and  treatment.  The  government,  through  the  local 
government  board  in  1916,  offered  to  bear  half  the  expense  of 
such  centers  and  other  specified  free  medical  assistance  to 
mothers  afforded  by  local  organizations,  public  or  private. 
Italy,  in  1910,  established  a  system  of  compulsory  maternity 


SOCIAL  INSURANCE  425 

insurance  applicable  to  women  industrial  workers  of  from 
fifteen  to  fifty  years  of  age.  Women  employees  and  their 
employers  contribute  equally,  while  the  state  contributes 
one-fourth  of  the  confinement  benefit  of  $7.72. 

Direct  state  aid  was  in  1920  in  existence  in  Australia,  Den- 
mark, and  France.  In  Australia  legislation  of  1912  provided 
for  a  payment  from  government  funds  of  $24.30  to  every 
woman  upon  the  birth  of  a  living  child.  Danish  legislation 
of  1913  provided  that  any  public  relief  given  lying-in  women 
during  the  four  weeks  following  confinement,  when  their 
industrial  employment  is  prohibited,  shall  not  be  considered 
poor  relief.  A  French  act  of  1913  provided  a  grant  from 
public  funds  to  women  employed  by  others  for  wages.  This 
grant  is  given  upon  condition  that  the  mother  give  up  her 
usual  gainful  employment,  that  she  take  all  practicable  rest, 
and  that  she  follow  health  instructions  given  her.  An  addi- 
tional allowance  is  made  if  the  mother  nurses  her  child.  In 
1918  this  act  was  extended  to  include  all  women  with  insuffi- 
cient means. 

Although  in  this  country  several  states,  beginning  with 
Massachusetts  in  1912,  prohibit  the  industrial  employment 
of  women  for  a  period  of  several  weeks  immediately  before 
and  after  childbirth,1  no  American  state  had  before  1920 
recognized  the  justice  and  necessity  of  furnishing  maternity 
benefits  during  such  periods  of  enforced  idleness.  The  Inter- 
national Labor  Conference  of  1919,  held  in  Washington, 
adopted  a  draft  convention  providing  that  during  the  six 
weeks'  rest  which  a  wage-earning  woman  may  take  preceding 
confinement  and  the  similar  rest  which  she  is  to  be  required 
to  take  following  confinement,  she  shall  be  paid  "benefits  suf- 
ficient for  the  full  and  healthy  maintenance  of  herself  and  her 
child  provided  either  out  of  public  funds  or  by  means  of  in- 
surance, the  exact  amount  of  which  shall  be  determined  by 
the  competent  authority  in  each  country,  and  as  an  additional 
benefit  shall  be  entitled  to  free  attendance  by  a  doctor  or 
certified  midwife."  If  insurance  is  to  accomplish  its  object 
of  conserving  the  health  and  life  of  a  nation,  it  is  desirable  that 
maternity  benefits  be  extended  as  widely  as  possible. 


1  See  "Childbirth  Protection,"  p.  348. 


426       PRINCIPLES  OF  LABOR  LEGISLATION 

(4)  Need  in  the  United  States 

By  1920  universal  workmen's  health  insurance  was  eagerly 
discussed  in  America,  a  bill  having  been  passed  by  the  New 
York  Senate  in  April,  1919.  Nine  states,1  through  official  in- 
vestigating commissions,  had  reported,  thus  making  available 
to  the  public  a  wealth  of  data  concerning  the  need  for  this  type 
of  social  insurance.  Official  investigations  have  disclosed  the 
fact  that  in  the  course  of  a  year  approximately  20  per  cent, 
of  the  workers  are  sick,  each  case  lasting  on  the  average  about 
thirty-five  days.  Other  investigations  have  shown  that  at 
any  one  time  2.3  per  cent,  of  the  workers  fifteen  years  of  age 
and  over  are  so  sick  as  to  be  unable  to  work,  and  that  sickness 
when  distributed  over  a  group  means  an  average  of  about  8.4 
days  of  sickness  a  year  for  each  person.  Although  the  hazard 
has  been  measured  with  a  fair  degree  of  accuracy,  existing 
forms  of  insurance  have  so  far  been  unable  to  meet  the  situa- 
tion. Official  investigations  have  shown  that  only  about  one- 
third  of  the  workers  carry  health  insurance,  and  that  what 
they  do  carry  is  usually  for  small  amounts  and  often  unac- 
companied by  any  medical  benefit.  Low-paid  workers,  among 
whom  there  is  most  sickness,  carry  the  least  insurance.  Sav- 
ings from  wages,  which  usually  have  not  kept  pace  with  the 
great  increases  in  the  cost  of  living,  are  too  frequently  inade- 
quate to  meet  the  strain  of  a  period  of  sickness.  It  is  not 
surprising,  therefore,  that  sickness  is  a  factor  in  more  cases  of 
dependency  than  any  other  one  cause,  being  involved  in  at 
least  one-third  of  the  cases  which  seek  relief  from  voluntary 
charity. 

Although  the  burden  is  borne  by  the  workers  and  those 
philanthropically  inclined,  there  is  accumulating  evidence  that 
industry  is  also  a  factor  in  causing  sickness  and  that  it  should 
justly  bear  a  portion  of  the  expense.  Investigation  has  also 
shown  that  the  medical  needs  of  sick  wage-earners  are  inade- 
quately met,  partly  on  account  of  inability  to  pay  the  cus- 
tomary fees.  As  a  result,  many  go  without  proper  care,  or 
obtain  medical  charity  where  it  is  available.  The  recent 


1  California,  Massachusetts,  New  Jersey,  Connecticut,  Wisconsin,  Ohio, 
Illinois,  New  York,  and  Pennsylvania. 


SOCIAL  INSURANCE  427 

advances  in  medicine  resulting  in  increased  specialization  have 
increased  the  expensiveness  of  medical  service  and  the  need 
for  its  organization.  Among  those  familiar  with  the  social 
side  of  medicine  there  is  a  keen  realization  that  a  reorganiza- 
tion of  medical  practice  and  new  methods  of  financing  it  are 
urgently  needed. 

After  a  careful  survey,  the  California  Social  Insurance  Com- 
mission, which  was  the  first  to  report,  concluded  that,  "Health 
insurance  to  be  effective  must  be  made  compulsory  upon  the 
individual  worker."  l  The  Pennsylvania  Health  Insurance 
Commission  stated  two  years  later,  "Your  commission  believes 
that  the  best  way  to  close  this  sickness  highroad  to  poverty 
and  dependency  is  to  make  available  immediate  and  adequate 
medical  care  for  sickness  cases  and  to  prevent  the  financial 
burden  of  sickness  from  falling  entirely  on  the  person  least  able 
to  bear  it— the  sick  worker.  In  some  way  the  burden  should 
be  distributed  among  all  wage  workers,  or  shared  by  indus- 
try and  by  the  community  as  a  whole."  2  The  New  York 
State  Federation  of  Labor,  in  recommending  compulsory 
health  insurance,  pointed  put  that  only  through  this  method 
could  a  portion  of  the  cost  be  passed  on  to  industry.  On  the 
medical  side,  health  insurance  distributes  the  cost  of  medical 
care  between  industry  and  the  workers  and  enables  the  worker 
to  pay  his  share  of  the  cost  in  advance  during  periods  of  good 
health.  It  will  also  facilitate  the  organization  of  group  prac- 
tice which  is  required  by  the  recent  advances  in  medicine. 

The  bills  which  have  been  introduced  in  the  various  state 
legislatures  follow  in  the  main  the  standards  for  health  in- 
surance formulated  by  the  American  Association  for  Labor 
Legislation  in  19  i/j..3  They  usually  provide  for  a  cash  sickness 
benefit  during  twenty-six  weeks,  medical  care,  maternity  bene- 
fits, and  a  funeral  benefit.  The  cost  is  divided  equally  be- 
tween worker  and  employer,  while  the  state  bears  the  cost  of 
central  supervision.  Thp  insurance  is  to  be  carried  by  mutual 
democratically  managed  associations  of  workers  and  employ- 
ers, called  "funds,"  which  the  state  will  supervise. 

In  addition  to  the  relief  value  of  such  measures  they  contain 

1  Report  of  the  Social  Insurance  Commission  of  California,  1917,  p.  121. 

2  Report  of  the  Health  Insurance  Commission  of  Pennsylvania,  1919,  p.  9. 

3  American  Labor  Legislation  Revieu>,  December,  1914,  pp.  595-596. 


428       PRINCIPLES  OF  LABOR  LEGISLATION 

important  possibilities  for  the  prevention  or  illness.  After  a 
century  of  rapid  industrial  growth  and  increasing  urban  popu- 
lation we  are  just  beginning  to  value  as  a  social  factor  the 
sanitation  which  drains  cities,  provides  pure  water  and  pure 
milk,  and  quarantines  infectious  diseases.  We  have  too  long 
failed  to  realize  that  the  ill  health  of  the  individual,  even 
though  he  may  not  be  suffering  from  a  contagious  disease,  is 
a  matter  of  public  concern.  Medical  care  of  adults  is  no  less 
important  for  a  state  which  values  the  lives  of  its  citizens  than 
is  the  medical  examination  of  school  children  which  we  have 
already  adopted  in  the  larger  cities. 

More  general  medical  consultation  will  reveal  unsuspected 
tendencies  which,  if  allowed  to  develop,  will  have  as  pernicious 
effects  as  the  adenoids  we  are  careful  to  remove  from  ^chool 
children.  Here,  as  in  England,  there  are  many  wage-earners 
who  are  unable  to  afford  a  doctor's  fee.  Nor  is  the  dispensary 
service  given  in  the  large  cities  sufficient  to  meet  the  need. 
A  socialized  medical  service,  whereby  all  who  require  the  ser- 
vices of  a  physician  may  have  access  to  the  necessary  treat- 
ment, has  been  found  very  effective  in  some  countries.  Great 
Britain's  health  insurance  act  has  revealed  a  mass  of  human 
suffering,  especially  among  women,  which  hitherto  had  re- 
ceived no  medical  attention.  Because  of  the  increased  use  of 
doctors,  a  far  larger  number  of  persons  have  been  discovered 
who  need  operations  and  hospital  care — persons  whose  ills 
previously  would  have  gone  without  treatment  until  the  suf- 
fering had  become  acute  and  the  chances  of  recovery  had 
been  diminished.  The  need  revealed  has  been  so  great  that 
there  is  strong  sentiment  in  favor  of  extending  medical  care 
under  the  insurance  act  to  the  dependents  of  the  insured. 
Socialized  medical  service  has  resulted  in  prophylactic  treat- 
ment for  the  individual  and  in  the  conservation  of  national 
vitality. 

Great  Britain's  health  insurance  act  has  been  an  incentive 
for  undertaking  a  national  campaign  against  tuberculosis. 
By  means  of  a  sanatorium  benefit  for  insured  workers 
suffering  from  this  disease,  more  adequate  treatment  is  being 
provided. 

Furthermore,  the  necessity  of  spending  money  on  prevent- 
able disease  is  in  itself  a  stimulus  to  prevention.  Various  Eng- 


SOCIAL  INSURANCE  429 

lish  bodies  have  been  aroused  by  this  factor  to  a  keen  interest 
in  the  relation  between  tuberculosis  and  housing.  The  finan- 
cial pressure  on  "approved  societies"  is  a  direct  inducement 
to  demand  thorough  inspection  of  dwellings  and  workplaces, 
especially  since  the  delinquent  authority  can  be  made  to  pay 
the  cost  of  the  sickness  produced  by  the  poor  sanitary  condi- 
tions which  it  has  allowed  to  exist.  In  its  report  on  public 
health,  after  the  war,  the  British  Ministry  of  Reconstruction 
stated  of  the  workings  of  the  insurance  act:  "The  attention 
thus  drawn  to  these  [sickness]  conditions  not  only  stimulated 
provision  for  the  direct  alleviation  of  existing  suffering,  but 
also  encouraged  the  rediscovery,  as  it  were,  following  the 
course  of  evolution  of  medical  science,  of  a  humaner  principle 
of  prevention,  as  the  means  by  which  the  sufferings  of  the 
individual  could  best  be  relieved  or  averted.  In  another 
general  respect  the  insurance  act  entirely  altered  the  previous 
position.  It  created  a  new  body  of  organized  public  opinion, 
with  a  financial  interest  in  the  improvement  of  the  national 
health."  l 

It  is  also  possible,  as  the  American  plans  provide,  to  levy  a 
higher  premium  upon  the  industry  or  particular  establishment 
in  which  the  sickness  rate  is  higher  than  normal.  This  is  a 
means  tending  to  persuade  the  employer  of  the  economy  of 
factory  sanitation  which  will  improve  the  health  of  the  worker 
and  thereby  reduce  his  insurance  premium.  It  is  the  same 
inducement  of  low  insurance  premiums  for  workmen's  com- 
pensation which  is  partially  responsible  for  the  "Safety  first" 
movement  and  the  installation  of  safety  appliances.  With- 
out a  compulsory  health  insurance  system,  the  economy  of 
health  preservation  cannot  be  made  an  effective  lever  for 
reform. 

3.  OLD  AGE  AND  INVALIDITY  INSURANCE 

The  rapid  development  of  industry  has,  among  its  other 
results,  placed  emphasis  on  the  individual's  physical  vigor  and 
wage-earning  capacity.  It  has  deprived  old  age  of  the  esteem 
bestowed  upon  it  under  more  primitive  patriarchal  conditions, 


1  Great  Britain,  Ministry  of  Reconstruction,  Reconstruction  Problems, 
23,  "Public  Health,  I— A  Survey,"  1919,  pp.  6-7. 


43o       PRINCIPLES  OF  LABOR  LEGISLATION 

and  after  a  life  of  productive  toil  it  relegates  to  the  back- 
ground the  aged  or  incapacitated  man  as  a  useless,  uneconomic 
factor.  Failing  health,  inability  to  find  employment,  lack 
of  means,  often  absence  of  friends  willing  or  able  to  help  him 
— such  is  the  prospect  which  confronts,  in  the  great  majority 
of  cases,  the  aged  worker. 

(i)   Unassisted  Old  Age  Insurance 

In  response  to  the  gravity  of  this  situation  three  main 
measures  of  relief  have  been  developed:  charity,  saving,  and 
insurance.  Charity  has  been  known  since  ancient  times,  and 
no  doubt  has  relieved  a  deal  of  destitution.  But  the  modern 
opinion  is  that  charity,  both  private  and  public,  is  insufficient 
in  amount  and  unsatisfactory  in  quality;  that  it  exercises  a 
degrading  effect  upon  the  recipient  and  is  repugnant  to  the 
self-respecting  person.  The  serious  difficulties  in  the  way  of 
saving  are  also  well  known.  The  low  standard  of  wages  sel- 
dom, if  ever,  allows  any  surplus;  most  often  the  immediate 
demands  outweigh  the  arguments  in  favor  of  saving.  Be- 
sides, the  very  remoteness  of  old  age  and  the  uncertainty  of 
attaining  it  discourage  many  people  from  making  preparation 
for  the  future  at  the  expense  of  the  present.  In  this  problem, 
as  in  that  of  provision  for  illness,  the  collective  process  of 
insurance  is  considered  much  more  satisfactory  than  the  in- 
dividualistic method  of  savings.  Professor  Seager  has  said 
that  "for  every  wage-earner  to  attempt  to  save  enough  to 
provide  for  his  old  age  is  needlessly  costly.  The  intelligent 
course  for  him  is  to  combine  with  other  wage-earners  to  ac- 
cumulate a  common  fund  out  of  which  old  age  annuities  may 
be  paid  to  those  who  live  long  enough  to  need  them."  1 

The  development  of  old  age  and  invalidity  insurance  is 
similar  to  that  of  health  insurance.  The  first  stage  in  the 
movement  was  marked  by  optional  unassisted  insurance, 
which  is  still  furnished  by  some  fraternal  societies,  trade 
unions,  establishment  funds,  and  insurance  companies.  How- 
ever, the  number  of  fraternal  societies  and  trade  unions, 
either  here  or  abroad,  which  undertake  the  complicated  busi- 


1  Henry  R.  Seager,  Social  Insurance,  1910,  pp.  118,  119. 


SOCIAL  INSURANCE  431 

ness  of  old  age  and  invalidity  insurance  is  small.  In  many 
states  of  this  country  fraternal  societies  are  prohibited  from 
dealing  in  it.  Only  forty-two  out  of  182  general  or  national 
fraternal  benefit  societies  in  the  United  States  promise  old 
age  benefits,  and  these  usually  do  not  begin  until  the  age  of 
seventy  has  been  reached.1  As  to  American  trade  unions,  out 
of  about  120  existing  national  organizations  four  are  known 
to  pay  a  superannuation  benefit.  These  are  the  International 
Typographical  Union,  the  Granite  Cutters'  International  As- 
sociation, the  Amalgamated  Society  of  Carpenters  and  Joiners, 
and  the  Amalgamated  Society  of  Engineers,  the  last  two 
being  branches  of  English  unions.  In  a  few  other  unions  the 
introduction  of  this  form  of  insurance  is  being  considered,  and 
in  some  old  age  benefits  are  paid  by  individual  locals.  Nine- 
teen unions,2  the  majority  of  which  consist  of  transportation 
workers,  pay  a  permanent  disability  benefit.  Business  con- 
cerns furnishing  old  age  insurance  for  their  employees  are  also 
rare,  especially  in  this  country,  as  are  those  granting  straight 
old  age  pensions.  Insurance  companies  do  a  considerable  old 
age  annuity  business  in  Europe,  chiefly  among  the  middle 
class;  in  the  United  States,  on  the  contrary,  commercial  old 
age  insurance  for  wage-earners  is  little  known. 

(2)  Assisted  State  Plans 

Obviously,  voluntary  unassisted  old  age  insurance  reaches 
only  a  small  part  of  the  wage-earners.  As  a  consequence,  as 
in  the  other  branches  of  social  insurance,  it  came  to  be  con- 
sidered the  duty  of  the  state  to  assist  its  aged  citizens,  and  the 
principle  of  state  insurance,  sometimes  aided  by  subventions, 
was  devised. 

This  form  of  voluntary  old  age  insurance  is  known  in  France, 
Belgium,  and  England,  and  in  America  in  the  states  of  Massa- 
chusetts and  Wisconsin,  and  in  Canada.  France  and  Belgium 
grant  subventions  in  the  form  of  a  substantial  rate  of  interest, 
and  to  certain  classes  of  insured  direct  subsidies  are  given. 


1  Lee  W.  Squier,  Old  Age  Dependency  in  the  United  States,  1912,  p.  67. 

2  United  States  Commissioner  of  Labor,  Twenty-third  Annual  Report, 
"Workmen's  Insurance  and  Benefit  Funds  in  the  United  States,"  1908, 
P-  31- 


432       PRINCIPLES  OF  LABOR  LEGISLATION 

The  state  also  furnishes  the  administrative  machinery  and 
running  expenses.  The  Massachusetts  plan  is  a  system  of 
voluntary  old  age  insurance  through  the  savings  banks  under 
state  supervision,  while  the  Wisconsin  system  provides  for 
the  issuance  of  annuities  by  the  state  life  fund  under  the 
supervision  of  the  insurance  commissioner. 

But  even  state  assistance  and  supervision  failed  to  secure 
for  old  age  and  invalidity  insurance  any  large  measure  of 
popular  acceptance.  Experts  commonly  agree  that  even  gen- 
erous subsidies  do  not  seem  to  attract  more  than  a  small 
part  of  the  wage-earners;  that  in  a  large  number  of  cases  the 
payments  are  either  made  irregularly  or  are  after  a  while  sus- 
pended, and  that  the  benefits  paid  are  very  small. 

In  view  of  the  insufficiency  of  state  control  and  subsidy, 
two  other  very  significant  elements  of  social  insurance  were 
added,  namely,  compulsion  and  the  requirement  of  the  em- 
ployer's contribution. 


(j)  Compulsory  Systems 

Compulsory  old  age  and  invalidity  insurance  has  been 
slower'  in  developing  than  health  insurance,  but  recently  it 
has  made  rapid  advances.  By  1920  it  was  established  in  the 
eleven  countries  of  Germany,  Luxemburg,  France,  Roumania, 
Sweden,  Holland,  Austria,  Spain,  Italy,  Portugal,  and  Czecho- 
slovakia, and  in  the  United  States  for  all  federal  government 
employees  in  the  classified  civil  service.  In  this  branch  of 
social  insurance,  as  in  the  two  previously  discussed,  Ger- 
many took  the  lead,  enacting  its  first  law  in  1889.  All 
German  wage-earners  of  the  designated  ages  and  occu- 
pational groups,  regardless  of  size  of  income,  are  com- 
pelled to  insure.  Salaried  workers  in  specified  occupations 
are  included,  with  the  exception  of  those  earning  more 
than  $476  a  year,  who  may,  in  common  with  other  classes, 
take  out  voluntary  insurance.  Contributions  are  of  five 
grades,  ranging  from  4  cents  to  12  cents  a  week  accord- 
ing to  the  worker's  income,  and  are  paid  in  equal  parts 
by  employer  and  employee.  The  pensions  also  are  divided 
ive  groups,  corresponding  to  the  five  grades  of  con- 
tributions. The  state's  contribution  consists  in  the  pay- 


SOCIAL   INSURANCE  433 

ment  of  a  fixed  sum  annually  to  each  person  in  receipt  of 
a  pension.  A  necessary  condition  for  receiving  a  pension  is 
the  payment  of  contributions  for  not  less  than  1,200  weeks. 
To  meet  the  need  of  persons  who  are  already  of  advanced  age, 
transitory  provisions  are  introduced,  reducing  the  required 
1,200  weeks'  payments  by  forty  for  each  year  of  age  over 
thirty-five  when  the  law  went  into  effect.  The  age  qualifica- 
tion for  receiving  an  old  age  pension,  first  set  at  seventy  years, 
is  now  reduced  to  sixty-five. 

Provisions  for  old  age  are  subsidiary,  in  the  German  law,  to 
those  for  invalidity  insurance.  An  insured  person  of  any 
age,  who  on  account  of  diminished  strength  is  unable  to  earn 
one-third  of  the  wages  usually  paid  to  normal  workers  in  his 
occupation,  is  entitled  to  an  invalidity  pension.  In  1908, 
894,000  persons  were  in  receipt  of  invalidity  pensions  as 
against  102,000  who  were  drawing  old  age  pensions,  or  nearly 
nine  times  as  many.1  The  invalidity  benefits  are  larger  than 
the  old  age  pensions.  The  law  also  provides  a  benefit  to  an 
invalided  wife  or  husband  upon  the  death  of  the  insured  wage- 
earner  and  a  benefit  to  the  fatherless  orphan  of  an  insured 
person.  - 

For  the  purposes  of  this  insurance  the  empire  is  divided 
into  large  districts  for  each  of  which  is  created  an  insurance 
institute,  under  the  direct  supervision  of  the  imperial  insur- 
ance office.  Each  institute  is  managed  by  a  board  of  direct- 
ors, in  part  appointed  by  a  public  authority,  in  part  chosen 
equally  from  employers  and  employees  by  the  committee, 
itself  an  elective  body  composed  of  equal  numbers  of  em- 
ployers and  employees,  with  supervisory  duties.  While  far 
more  bureaucratic  than  the  sickness  funds,  the  administration 
of  the  institutes  is  still  largely  supervised  by  the  persons 
affected  as  contributors  and  beneficiaries. 

Two  unique  points  in  the  German  old  age  invalidity  insur- 
ance system  are  sickness  pensions  and  sanatorium  treatment. 
Sickness  benefits,  equivalent  in  amount  to  invalidity  benefits, 
are  paid  to  persons,  not  permanently  incapacitated,  who  have 
exhausted  their  claims  to  sick  pay  and  are  still  unable  to 
work.  However,  it  is  entirely  apart  from  cash  payments, 


Rubinow,  Social  Insurance,  p.  359. 


434       PRINCIPLES  OF  LABOR  LEGISLATION 

and  in  the  realm  of  prevention,  that  the  most  significant  fea- 
ture of  the  whole  German  social  insurance  plan  is  to  be 
found.  Under  the  local  pension  boards  is  maintained  a 
country-wide  network  of  sanatoria,  rest  homes,  and  health 
resorts.  Persons  who  have  drawn  all  their  sick  benefits  but 
who  are  still  unable  to  work  are  entitled  to  maintenance  in 
these  institutions,  and  the  timely  and  efficient  care  there 
furnished  to  the  patients  has  proven  a  powerful  factor  in  the 
prevention  of  invalidity. 

In  addition  to  their  legislation  covering  wage-earners,  which 
has  already  been  described,  Austria,  Germany,  and  Czecho- 
slovakia have  enacted  laws  providing  compulsory  old  age  in- 
surance for  salaried  employees  in  certain  income  groups.  The 
benefits  include  invalidity  and  old  age  pensions,  a  pension  to 
the  widow,  and  a  benefit  to  minor  children  under  specified 
ages.  Austrian  and  Czechoslovakian  legislation  places  two- 
thirds  of  the  cost  upon  the  employer  and  one-third  upon  the 
worker  for  the  lower  income  groups,  and  divides  the  cost 
equally  between  employer  and  employee  in  the  higher  paid 
classes.  In  Germany  the  cost  is  divided  equally  between 
worker  and  employer.  Swedish  legislation  is  applicable  to 
every  person  sixteen  years  of  age  and  over,  regardless  of 
income  or  employment.  The  cost  is  shared  by  the  worker 
and  the  state.  A  principle  similar  to  the  Swedish  has  been 
followed  in  the  compulsory  old  age  insurance  adopted  by  the 
Swiss  canton  of  Glarus. 

The  American  law  establishing  compulsory  contributory 
old  age  and  invalidity  insurance  for  the  federal  government's 
employees  in  the  classified  civil  service1  was  enacted  in  1920 
after  years  of  agitation.  The  age  of  retirement  is  fixed  at 
sixty-two  for  railway  mail  employees,  sixty-five  for  mechanics, 
letter  carriers,  and  post  office  clerks,  and  seventy  for  all 
others.  Any  employee  able  and  willing  to  carry  on  his  duties 
efficiently  may,  in  the  discretion  of  the  head  of  his  depart- 
ment, and  on  approval  by  the  Civil  Service  Commission,  be 
continued  in  his  position  beyond  the  retirement  age  for  two 
periods  of  two  years  each,  but  no  longer.  On  retirement  an 
employee  becomes  eligible  to  a  yearly  pension  ranging  from 
$180  to  $720,  according  to  previous  salary  and  length  of  ser- 

1  Numbering,  when  the  act  was  passed,  about  300,000. 


SOCIAL  INSURANCE  435 

vice.  No  one  who  has  not  been  employed  by  the  government 
at  least  fifteen  years  is  eligible  to  benefits  under  the  law.  In 
addition  to  the  old  age  pension  provisions,  the  act  establishes 
the  same  benefits  for  those  who,  after  fifteen  years'  service 
but  before  the  retiring  age,  become  totally  disabled  because 
of  disease  or  injury  "not  due  to  vicious  habits,  intemperance, 
or  wilful  misconduct."  Recipients  of  disability  benefits,  unless 
their  incapacity  is  known  to  be  permanent,  are  to  be  exam- 
ined annually  by  a  United  States  medical  officer  or  a  desig- 
nated physician  to  determine  whether  they  are  still  eligible 
to  the  benefit.  The  employees'  contribution  toward  the  bene- 
fits is  made  through  a  deduction  of  2^  per  cent,  from  all 
salaries.  Employees'  contributions,  it  is  estimated,  will  cover 
about  one-third  of  the  expense  of  the  law.  The  remaining 
two-thirds,  the  government's  contribution,  will  be  paid  from 
general  taxation.  Persons  who  leave  the  government  service 
or  die  before  reaching  the  age  or  length  of  service  necessary 
for  retirement  are  entitled  to  receive  all  moneys  paid  in  by 
them,  with  interest  compounded  at  4  per  cent,  annually. 
Administration  of  the  act  is  mainly  lodged  with  the  commis- 
sioner of  pensions  under  the  Secretary  of  the  Interior. 


(4)  Straight  Pensions 

Another  much  discussed  method  of  meeting  the  problem 
of  old  age  poverty  is  that  of  "straight,"  or  non-contributory, 
pensions.  Such  pensions,  their  opponents  charge,  tend  to 
keep  wages  at  a  low  level,  destroy  the  habit  of  thrift,  and 
have  an  injurious  effect  on  family  solidarity.  As  for  the 
last  argument,  it  is  difficult  to  see  how  the  parents'  depend- 
ence can  add  to  the  filial  affection  of  the  struggling  wage- 
earner.  The  habit  of  thrift,  also,  can  hardly  be  destroyed 
by  the  remote  and  uncertain  possibility  of  attaining  old  age 
with  a  pension  which  is  hardly  sufficient  to  keep  body  and 
soul  together.  With  regard  to  the  possible  effect  on  wages, 
the  persons  in  receipt  of  old  age  pensions  are  a  very  unim- 
portant factor  in  the  labor  market,  and  as  to  the  workingmen 
who  have  not  yet  reached  pensionable  years  it  is  doubtful 
whether  the  prospect  of  a  very  meager  assistance  in  their  old 
age  would  alone  be  sufficient  to  make  them  accept  lower 


436      PRINCIPLES  OF  LABOR  LEGISLATION 

wages.  Some  champions  of  social  insurance  also  object  to 
straight  pensions  on  the  apparently  more  valid  ground  that 
the  straight  grant  resembles  charity  and  is,  therefore,  less 
desirable  than  a  system  by  which  the  worker  is  asked  to  con- 
tribute. 

Straight  old  age  pensions  are  granted  sometimes  to  all 
persons  meeting  certain  personal  requirements,  and  sometimes 
for  the  performance  of  a  definite  period  of  service.  Seven 
countries — Denmark,  New  Zealand,  Belgium  (temporarily), 
France,  Australia,  Great  Britain,  and  Uruguay — and  Alaska 
and  Arizona1  in  the  United  States,  had  by  1920  enacted  legis- 
lation providing  such  aid  to  all  persons  possessing  certain 
moral,  economic,  or  civil  qualifications.  Under  most  of  these 
laws  a  definite  period  both  of  residence  and  of  citizenship  is 
prerequisite.  New  Zealand  demands  twenty-five  years',  Aus- 
tralia twenty,  Great  Britain  twelve,  Alaska  ten,  and  Arizona 
five  years'  residence,  while  in  Belgium  one  year  is  sufficient. 
In  Australia  the  applicant  must  have  been  a  citizen  three  years, 
in  Arizona  five  years,  and  in  Great  Britain  twenty  years. 
All  but  the  French  and  the  two  American  acts  embody  a 
number  of  moral  qualifications.  Family  desertion,  neglect 
of  children  under  fourteen  years,  drunkenness,  and  a  prison 
sentence  are  some  of  the  grounds  which  disqualify  an  appli- 
cant either  permanently  or  temporarily  from  receiving  an  old 
age  pension.  The  requirements  as  to  the  economic  status 
of  the  pensioner  also  vary  widely.  In  Australia  an  income  of 
$253  a  year  debars  one  from  receiving  an  old  age  pension; 
much  less  liberal  are  the  provisions  in  the  other  countries. 
In  France  an  income  of  $92.64  is  the  highest  allowed.  Similar 
regulations  exist  with  regard  to  the  amount  of  property  owned. 
The  grants  are  far  from  generous.  In  Great  Britain  the 
maximum  pension,  first  set  at  $1.25  a  week,  had  been  raised 
by  1920  to  $2.50  a  week,  and  in  Alaska  the  maximum  is  set 
at  $12.50  a  month.  In  other  countries  no  definite  level  of 
pensions  is  established  by  law,  and  the  local  authorities 
are  permitted  to  exercise  their  judgment  in  the  individual 
cases. 


1  This  act  was  shortly  after  passage  held  unconstitutional  by  the  supe- 
rior court,  and  in  January,  1920,  was  on  appeal  before  the  supreme  court 
of  the  state. 


SOCIAL  INSURANCE  437 

Straight  pensions  for  service  are  granted  both  by  govern- 
ments and  by  private  employers.  In  America  such  pensions 
are  provided  by  state  and  municipal  governments  for  certain 
classes  of  employees,  such  as  policemen,  firemen,  and  teachers. 
The  federal  government  has  also  established  pensions  in  the 
army  and  navy,  with  particular  generosity  toward  Civil  War 
veterans.  In  several  European  countries,  furthermore,  work- 
ers in  the  government  owned  industries  are  granted  pensions, 
as  for  example,  in  the  tobacco  works  of  Italy  and  France. 
Finally,  pensions  are  granted  to  their  employees  by  some 
private  concerns.  Establishment  pension  funds  exist  in  prac- 
tically every  cotintry  of  industrial  prominence,  but  in  the 
United  States  their  number  is  relatively  small.  The  trans- 
portation industry  can  boast  of  the  largest  number,  there 
being  at  least  eighteen  steam  railroads  with  such  pension  sys- 
tems, as  well  as  several  electric  street  railways  and  a  few 
steamship  lines.  The  number  of  manufacturing  establish- 
ments granting  pensions  was,  until  recent  years,  smaller. 
The  social  value  of  these  provisions  is  almost  negligible,  first, 
because  of  their  small  number,  and  second  because  of  their 
defects,  some  of  which  are  arbitrariness  on  the  part  of  the 
employer,  lack  of  certainty  as  to  the  receipt  of  the  pension, 
and  their  injurious  effect  on  the  independence  and  mobility 
of  labor. 

(5)   The  Problem  in  the  United  States 

Clearly  the  total  results  accomplished  by  all  these  organiza- 
tions are  of  little  or  no  consequence.  "Strange  as  it  may 
seem,"  declares  a  leading  American  authority,  "the  United 
States  is  the  only  great  industrial  nation  in  the  civilized  world 
that  has  not  already  attempted  a  practical  and  permanent 
solution  of  this  problem  of  old  age  and  dependency."  l  This 
neglect  of  the  problem  of  old  age  poverty  cannot,  however, 
be  explained  by  the  absence  of  conditions  calling  for  attention. 
On  the  basis  of  an  investigation  of  old  age  poverty  made  in 
Massachusetts  by  a  special  commission  on  old  age  pensions 
of  that  state,  it  is  estimated  that  "approximately  1,250,000 
of  the  people  of  the  United  States  above  sixty-five  years  of 

1  Squier,  Old  Age  Dependency  in  the  United  States,  p.  325. 


438       PRINCIPLES  OP  LABOR  LEGISLATION 

age  are  dependent  upon  public  and  private  charity,  to  the 
amount  of  about  $250,000,000  annually.  Thus  far  one  person 
in  eighteen  of  our  wage-earners  reaches  the  age  of  sixty-five  in 
penury;  and  the  indications  are  that  the  proportion  of  in- 
digent old  is  increasing."  l 

The  awakening  interest  in  old  age  provision  had  resulted  by 
1920  in  the  appointment  of  official  investigating  commissions 
in  some  half  a  dozen  states.  The  Pennsylvania  commission 
reported  that  43  per  cent,  of  the  population  aged  fifty  and 
over  had  no  means  of  support  other  than  their  own  earnings, 
and  that  only  38  per  cent,  of  the  general  aged  population 
possessed  personal  property.  Declining  earning  power  coupled 
with  the  absence  of  resources  is  almost  certain  to  compel  many 
to  ask  for  charity.  Both  the  Ohio  and  Pennsylvania  investi- 
gations showed  that  old  age  was  a  native  problem  and  not  one 
imported  by  immigrants.  Existing  pension  systems  are  an 
insignificant  factor  in  meeting  the  situation ;  in  Ohio  the  com- 
mission estimated  that,  exclusive  of  federal  and  state  pension- 
ers, only  3,000  persons  were  pensioned  out  of  an  estimated 
population  of  304,000  persons  sixty-five  years  of  age  and  over. 
In  Ohio  relief  afforded  by  private  homes  for  the  aged  and  by 
almshouses  provided  for  a  larger  number.  But  this  charity, 
both  investigations  showed,  was  insufficient,  while  the  Ohio 
commission  found  it  necessary  to  criticize  severely  the  character 
of  the  care  and  treatment  afforded  by  public  almshouses.  The 
Pennsylvania  commission  pointed  out  that  the  existing  means 
can  never  be  expected  to  meet  the  situation,  and  urged  further 
study  of  the  more  comprehensive  methods  developed  else- 
where. The  Ohio  commission  recommended  non-contributory 
old  age  pensions.2 

The  failure  of  the  United  States  to  provide  an  organized 
policy  for  the  protection  of  its  citizens  at  the  close  of  their 
life  of  productive  work  appears  the  more  striking  when  we 
see  that  thirteen  European  countries,  together  with  Australia 
and  New  Zealand,  have  enacted  national  measures,  in  the 
form  either  of  insurance  or  of  straight  pensions,  for  the  solu- 
tion  of  this  problem. 

1  Squier,  Old  Age  Dependency  in  the  United  States,  p.  324. 

*  Report  of  tJie  Pennsylvania  Commission  on  Old  Age  Pensions,  1919; 
Ohio  Health  and  Old  Age  Insurance  Commission,  Health,  Health  Insur- 
ance, Old  Age  Pensions,  1919. 


SOCIAL  INSURANCE  439 

4.  WIDOWS'  AND  ORPHANS'  INSURANCE 

Insurance  for  the  protection  of  widows  and  orphans,  or, 
as  it  is  ordinarily  called,  life  insurance,  is  furnished  by  prac- 
tically all  fraternal  societies,  many  trade  unions,  some  estab- 
lishment funds,  and  by  private  life  insurance  companies.  In 
some  countries,  such  as  Great  Britain,  France,  Italy,  Russia, 
and  Canada,  the  government  has  undertaken  the  business  of 
life  insurance;  in  the  United  States  we  have  state  life  in- 
surance in  Wisconsin,  and  in  Massachusetts  there  is  a  system 
of  life  insurance  administered  by  savings  banks  under  state 
supervision. 

(i)   Voluntary  Life  Insurance 

Life  insurance,  sometimes  for  enormous  amounts  and  paid 
for  by  annual  or  quarterly  contributiens  or  premiums,  is  now 
a  well-established  method  of  providing  for  the  future  among 
the  moderately  well  to  do  and  the  wealthy.  But  in  order 
to  bring  the  poorly  paid  wage-earner  under  the  system,  a 
special  form  of  life  insurance  had  to  be  devised,  known  as 
"industrial"  or  "prudential"  insurance  as  opposed  to  the 
"ordinary"  type.  Under  industrial  insurance  the  policy 
amounts  are  much  smaller,  usually  providing  only  for  the 
burial  of  the  insured,  and  to  facilitate  payment  premiums  are 
collected  weekly  or  monthly,  by  a  vast  army  of  agents.  This 
method  of  collection,  however,  results  in  the  increase  of  ad- 
ministrative expenses  and,  consequently,  in  higher  rates. 
Another  cause  of  higher  rates  in  industrial  insurance  is  the 
higher  death  rate  among  wage-earners.  Thus  even  in  pur- 
chasing decent  burial  the  wage-earner  is  obliged  to  pay  a 
higher  rate  of  insurance  than  does  his  more  prosperous 
neighbor. 

State  insurance,  as  well  as  insurance  furnished  by  fraternal 
societies,  trade  unions,  establishment  funds,  and  mutual 
assessment  societies,  is  less  expensive  but  still  outside  of  the 
reach  of  many  working  people.  Moreover,  because  the  in- 
surance is  voluntary,  the  very  families  most  in  need  of  pro- 
tection are  often  left  without  it.  These  defects,  as  in  the 
other  branches  of  social  insurance,  have  led  to  the  introduction 
of  the  compulsory  principle. 


440       PRINCIPLES  OF  LABOR  LEGISLATION 
(2)  Compulsory  Insurance 

Compulsory  widows'  and  orphans'  insurance,  the  newest 
branch  of  social  insurance,  had  been  adopted  by  1920  through 
comprehensive  legislation  in  France,  Germany,  Holland,  and 
Italy.  In  addition,  Austria,  Germany,  and  Czechoslovakia 
had  enacted  corresponding  provisions  for  salaried  employees 
earning  less  than  specified  amounts. 

In  France  the  compulsory  old  age  insurance  law  of  1910 
provides  for  benefits  to  widows  and  orphans  of  the  insured. 
The  total  benefits  vary  from  $29  to  $58,  according  to  the 
number  of  dependents,  and  are  paid  in  monthly  instalments 
of  $9.65  until  the  entire  amount  has  been  paid. 

In  the  following  year,  1911,  the  German  law  was  passed. 
As  in  France,  benefits  are  furnished  to  certain  survivors  of 
those  carrying  old  age  and  invalidity  insurance.  The  amount 
of  the  pension  depends  on  the  amount  of  invalidity  pension 
to  which  the  insured  was  entitled.  The  widow,  but  only  if 
she  is  herself  an  invalid,  receives  30  per  cent,  of  the  invalidity 
pension  to  which  her  husband  was  entitled.  Only  children 
under  fifteen  are  eligible  for  pensions,  the  amount  being  30 
per  cent,  of  the  parent's  pension  for  the  first  child  and  1 5  per 
cent,  for  each  of  the  others.  In  addition,  the  state  annually 
pays  the  widow  $11.90  for  herself  and  $5.95  for  each  child. 
The  cost  is  met  by  an  increase  of  the  premiums  for  old  age 
and  invalidity  insurance.  This  increase  varies  for  the  five 
different  wage-groups  established  for  that  type  of  insurance, 
and  runs  from  i  cent  to  nearly  3^  cents  a  week,  equal  shares 
of  this  amount  being  contributed  by  the  employer  and  the 
employee.  Under  an  earlier  form  of  the  law  it  was  estimated 
that  the  average  annual  pension  of  a  widow  with  three  chil- 
dren is  $37,*  a  sum  which  cannot  be  considered  as  substantial. 
An  increase  in  the  amount  of  benefits  paid  in  this  and  in 
other  branches  of  social  insurance  is  urged  as  the  next  step 
in  the  development  of  the  system. 

In  a  third  country,  Holland,  the  old  age  and  invalidity  in- 
surance law  of  1913  allows  benefits  to  the  orphans  of  men  or 
women  who  carried  old  age  and  invalidity  insurance.  These 
benefits  depend  on  the  amount  of  the  parent's  pension;  they 

1  Rubinow,  Social  Insurance,  p.  434. 


SOCIAL  INSURANCE  441 

are  paid  to  the  orphans  until  of  the  age  of  thirteen  and  only 
when  the  father  was  already  receiving  a  disability  pension  or 
if  forty  weekly  contributions  were  credited  to  him.  The 
same  limitations  hold  true  in  the  case  of  death  of  an  insured 
widow.  Italy  also  makes  provision  for  monthly  pensions  to 
widows  and  orphans  as  part  of  the  system  of  old  age  and 
invalidity  insurance,  dating  from  1919. 

Austrian  compulsory  old  age  and  invalidity  insurance  legis- 
lation of  1906,  as  amended  in  1914,  provides  for  salaried  em- 
ployees in  addition  to  old  age  and  invalidity  pensions,  pensions 
to  widows,  to  orphans  of  the  insured,  and  to  impecunious 
mothers  supported  by  the  insured.  German  and  Chechoslo- 
vakian insurance  for  salaried  employees  also  provides  pensions 
to  widows  and  orphans  of  the  insured. 

(j)  Mothers'  Pensions 

A  more  popular  method  of  dealing  with  the  problem  of 
widowhood  and  orphanhood  is  by  means  of  mothers'  or  wid- 
ows' pensions,  paid  to  certain  classes  of  mothers  with  depen- 
dent children.  These  pensions,  however,  are  straight  grants 
by  the  government.  Such  systems  exist  in  several  European 
countries,  in  New  Zealand,  and  in  a  number  of  American  states. 

The  movement  in  this  country  is  particularly  interesting. 
Here  the  pressing  problem  of  widows'  and  orphans'  poverty 
and  helplessness  has,  instead  of  giving  rise  to  social  insurance 
measures,  resulted  in  a  sudden  wave  of  legislation  providing 
straight  pensions,  usually  upon  condition  that  the  mother 
is  found  capable  of  providing  a  proper  home  for  her  child. 
Indeed,  a  leading  argument  in  behalf  of  this  legislation  is 
that  it  is  better  to  pay  the  mother  for  taking  care  of  her  child 
than  to  expend  the  same  amount  in  financing  institutions,  in 
even  the  best  of  which  the  death  rate  is  abnormally  high.  In 
the  nine  years  1911-1919  thirty-nine  American  states,  and 
Alaska  and  Hawaii,  enacted  such  laws.  The  surprising 
rapidity  with  which  this  provision  has  gained  recognition  in 
American  legislatures  is  a  significant  indication  both  of  the 
great  need  of  public  action  and  of  the  growing  conception  of 
the  state  as  having  a  duty  toward  its  citizens,  two  of  the  under- 
lying ideas  of  social  insurance. 


442       PRINCIPLES  OF  LABOR  LEGISLATION 

5.  UNEMPLOYMENT  INSURANCE 

Finally,  the  destitution  due  to  unemployment,  until  recently 
considered  a  matter  of  purely  individual  concern,  or  at  best 
as  an  occasion  for  charitable  activity,  is  now  beginning  to  be 
recognized  as  an  evil  which  must  be  met  by  the  coordinated 
forethought  of  society  as  a  whole.  The  demoralization  of 
individuals  and  communities  by  prolonged  and  widespread 
deprivation  of  income  due  to  involuntary  idleness,  it  is  now 
rather  generally  agreed,  should  no  longer  be  allowed  to  con- 
tinue unchecked.  Among  the  results  of  the  first  official  In- 
ternational Labor  Conference  in  1919  was  the  recommendation 
that  each  of  the  forty-one  member  countries  establish  "an 
effective  system  of  unemployment  insurance,  either  through 
a  government  system  or  through  a  system  of  government  sub- 
ventions to  associations  whose  rules  provide  for  the  payment 
of  benefits  to  their  unemployed  members." 

(i)  Voluntary  Out-of-Work  Benefits 

In  warding  off  the  financial  hardships  of  unemployment, 
individual  action  and  charity  have  been  found  just  as  inade- 
quate as  they  were  in  protecting  against  the  financial  hard- 
ships due  to  accident,  ill  health,  or  old  age.  Here  again  the 
collective  method  of  insurance  has  demonstrated  its  su- 
periority. Unemployment  insurance  originated  among  labor 
organizations,  and  at  first  the  cost  of  this  insurance  was  borne 
by  the  workers  themselves  without  any  outside  assistance. 
This  form  of  unemployment  insurance  has  achieved  a  con- 
siderable success  in  the  important  European  countries.  In 
the  United  States,  on  the  contrary,  only  a  few  unions  are 
known  to  pay  out-of-work  benefits.  Of  the  in  national 
organizations  affiliated  with  the  American  Federation  of  Labor 
in  1920  the  Cigar  Makers'  Union  alone  was  known  to  have  a 
national  system  of  unemployment  insurance.  Two  other  im- 
portant unions  which  pay  out-of-work  benefits,  the  Amalga- 
mated Society  of  Carpenters  and  the  Amalgamated  Society  of 
Engineers,  are  both  branches  of  British  organizations.  In  a 
number  of  national  unions  only  certain  locals  are  paying  such 
benefits;  several  unions  pay  a  traveling  benefit;  others  limit 


SOCIAL  INSURANCE  443 

themselves  to  excusing  their  unemployed  members  from  the 
payment  of  dues. 

In  addition  to  trade  unions,  fraternal  societies  in  some 
countries  pay  a  regular  out-of-work  benefit.  In  some  places, 
also,  there  are  instances  of  still  another  way  of  meeting  a  part 
of  the  unemployment  insurance  problem,  namely,  through 
funds  established  by  some  employers  for  their  own  employees. 


(2)  The  Ghent  System 

Unassisted  trade  union  unemployment  insurance,  however, 
with  the  cost  borne  by  the  workers  alone,  is  a  heavy  burden 
on  them  and  only  a  comparatively  small  part  of  the  workers 
are  able  or  willing  to  insure.  In  order  to  encourage  insurance, 
a  plan  was  devised  by  which  government,  most  often  munici- 
pal, subsidies  are  granted  to  trade  unions  furnishing  unem- 
ployment insurance.  This  is  the  principle  of  the  famous 
Ghent  system,  which  was  first  introduced  in  the  city  of  Ghent 
in  Belgium  in  1901.  The  Ghent  idea  was  rapidly  adopted, 
with  some  modifications,  not  only  in  a  number  of  cities  in 
Belgium;  but  also  in  Great  Britain,  Germany,  France,  Switzer- 
land, Italy,  Holland,  Denmark,  Norway,  and  Finland.  The 
subsidies  vary  in  the  different  countries  from  33^/3  per  cent,  to 
100  per  cent,  of  the  benefits  paid  by  the  unions.  In  Great 
Britain  the  trade  unions  which  were  outside  of  the  compulsory 
unemployment  insurance  law  of  1911  received  a  state  subsidy 
of  not  over  one-sixth  of  the  total  amoun^of  the  out-of-work 
benefits  paid.  To  meet  the  exceptional/unemployment  in  the 
early  days  of  the  war,  Great  Britain' temporarily  extended 
and  increased  the  subsidy  to  unions  paying  unemployment 
benefits. 

The  system  of  government  subsidized  unemployment  insur- 
ance has  undoubtedly  stimulated  provision  against  unemploy- 
ment.1 On  the  other  hand,  it  is  generally  recognized  that 
the  advantages  of  optional  subsidized  insurance  are  not  far- 
reaching  enough  to  offset  its  limitations,  the  most  important 
of  which  is  its  failure  to  attract  a  sufficiently  large  number  of 
workers.  The  lesson  taught  by  the  other  branches  of  social 

1  See  I.  G.  Gibbon,  Unemployment  Insurance,  pp.  104,  105. 


444       PRINCIPLES  OF  LABOR  LEGISLATION 

insurance  points  to  compulsory  insurance  as  the  solution  of 
the  problem. 

(j)  Compulsory  Unemployment  Insurance 

Compulsory  unemployment  insurance  was  first  introduced 
in  the  city  of  St.  Gall,  Switzerland,  in  1894.  After  a  two  years' 
trial  the  system,  owing  to  defective  administration,  was  ad- 
judged a  failure  and  was  discontinued.  The  only  countries 
where  compulsory  unemployment  insurance  was  in  force  in 
1920  were  Great  Britain,  where  it  went  into  operation  on  July 
15,  1912,  and  Italy,  where  it  went  into  effect  on  January  i, 
1920. 

At  the  beginning  of  1920  the  British  unemployment  insur- 
ance law  was  undergoing  revision  which  would  raise  its  benefits 
and  extend  them  to  practically  the  entire  wage-earning  popu- 
lation. In  its  original  form  the  act  applied  to  seven  groups 
of  trades,  but  the  administrative  authorities  were  permitted 
to  extend  the  range  of  the  system.  The  selected  trades  were 
(i)  building,  (2)  construction  of  works,  (3)  ship-building, 
(4)  mechanical  engineering,  (5)  iron-founding,  (6)  construc- 
tion of  vehicles,  and  (7)  saw-milling,  and  they  were  chosen 
because  in  them  the  extent  of  unemployment  was  greatest 
and  most  accurately  known.  About  2,500,000  workmen  were 
included,  out  of  15,000,000  in  the  country,  or  16  2/3  per  cent. 
An  amending  act  passed  in  1916,  in  anticipation  of  the  cessa- 
tion of  war,  extended  the  insurance  temporarily  to  include 
about  1,000,000  workers  engaged  in  munitions  manufacture. 
The  employer  and  employee  contributed  equal  amounts  of 
5  cents  each  week;  to  this  the  government  added  31/3  cents, 
which  was  one-third  of  the  combined  contribution  of  employer 
and  employee.  This  premium  entitled  the  worker  in  case  of 
unemployment  to  the  sum  of  $1.75  a  week  for  not  more  than 
fifteen  weeks  in  any  one  year.  No  benefit  was  paid  for  the 
first  week  of  unemployment,  and  the  worker  had  to  be  insured 
five  weeks  for  every  week  of  benefit  he  claimed.  The  limita- 
tion to  fifteen  weeks  a  year  did  not  in  practice  work  any 
serious  hardship.  In  a  study  of  130,000  cases  of  unemploy- 
ment it  was  found  that  only  5  per  cent,  of  the  recorded  unem- 
ployment among  union  men  and  only  1.2  per  cent,  among 


SOCIAL  INSURANCE  445 

non-union  men  was  left  without  benefit  because  of  this 
restriction.1 

To  safeguard  the  workers'  interests  an  unemployed  man  is 
not  compelled  to  take  work  in  a  place  where  a  trade  dispute 
is  on,  or  at  wages  below  those  he  usually  received  or  less  than 
those  current  in  the  community.  Anothet  clause  with  a 
similar  purpose  provides  that  any  insured  workman  over 
sixty  years  of  age,  who  has  been  insured  for  ten  years  and 
who  has  paid  500  contributions,  is  entitled  to  a  refund  of  his 
total  payments,  less  his'  total  benefits,  with  compound  in- 
terest at  2]/2  per  cent. 

As  a  protection  to  the  employer,  a  worker  is  refused  benefit 
if  he  strikes,  quits  without  due  cause,  or  is  discharged  for  bad 
conduct  or  inability  to  do  the  work.  Furthermore,  an  incen- 
tive to  regularize  production,  to  avoid  large  turn-overs  of 
labor,  and  thus  to  prevent  unemployment,  is  held  out  to  the 
employer  in  the  clause  entitling  him  to  a  refund  of  one-third 
of  his  own  contributions  for  each  worker  retained  in  his  em- 
ploy not  less  than  forty-five  weeks  in  a  year.  This  amounts 
at  present  to  not  less  than  75  cents  a  year  for  each  employee 
so  retained,  and  the  principle  is,  of  course,  capable  of  ex- 
tension. 

The  administrative  machinery  of  the  act  is  simple.  The 
employee  must  secure  an  unemployment  insurance  book, 
which  on  taking  employment  is  deposited  with  the  employer. 
The  latter  must  paste  in  the  book  on  pay  day  the  stamps 
representing  his  own  and  the  employee's  contribution,  de- 
ducting the  worker's  portion  from  his  wages.  The  weekly 
payments  are  transmitted  through  the  post  office,  which  sells 
the  stamps,  to  the  unemployment  insurance  fund,  which,  in 
spite  of  the  smallness  of  the  individual  contributions,  totals 
about  $12, 500,000  a  year  for  the  2 , 500,000  insured  workers.  If 
the  insured  worker  loses  his  place,  he  receives  from  his  em- 
ployer his  insurance  book,  which  he  must  then  deposit  in  the 
nearest  labor  exchange  or  insurance  office,  one  of  which  is 
within  five  miles  of  every  considerable  group  of  workers  in 
the  kingdom.  He  is  thus  automatically  registered  as  looking 


1  Great  Britain,  Board  of  Trade,  Report  oj  Proceedings  under  Part  II  of 
the  National  Insurance  Act,  1911,  p,  13, 


446       PRINCIPLES  OF  LABOR  LEGISLATION 

for  work,  and  so  an  abuse  of  the  system  by  the  "work-shy" 
man  is  avoided.  In  the  year  ending  January  17,  1914,  the 
sum  of  $2,488,625  was  paid  out  by  this  system  in  unemploy- 
ment benefits. 

The  signing  of  the  armistice  in  November,  1918,  and  the 
prospect  of  widespread  unemployment  not  only  among  de- 
mobilized soldiers  and  sailors  and  munition  workers,  but  also 
in  the  trades  supplying  raw  materials,  led  the  British  govern- 
ment to  provide  temporarily  a  system  of  so-called  non-con- 
tributory unemployment  insurance  or  "out-of-work  dona- 
tions." Demobilized  soldiers  and  sailors  an4  unemployed 
civilian  workers  were  declared  eligible  for  a  limited  amount 
of  benefit  at  the  rate  of  $7.07  a  week  for  men  and  $6.01  a  week 
for  women.  Benefit  was  paid  only  to  those  who  fulfilled  the 
conditions  of  involuntary  unemployment  as  established  by  the 
1911  unemployment  insurance  act,  and  the  same  machinery 
of  courts  of  referees  and  umpires  was  utilized  to  decide  dis- 
puted claims  for  benefit.  In  November,  1919,  the  donations 
were  discontinued  and  the  following  month  the  government 
introduced  into  Parliament  its  bill  for  a  more  comprehensive 
system  of  contributory  unemployment  insurance  with  higher 
benefits  than  those  of  the  original  act. 

Italy,  in  1919,  promulgated  a  decree  for  compulsory  unem- 
ployment insurance  which  embraces  those  between  sixteen 
and  sixty-five  years  of  age  who  are  employed  by  others  for 
money,  and  non-manual  workers  earning  less  than  $67.55  a 
month  in  private  firms.  Persons  rendering  domestic  service 
and  those  permanently  employed  by  public  authorities  are 
excluded.  The  contribution  of  workers  and  employers  and 
the  amount  of  weekly  benefit  are  graded  with  reference  to 
the  earnings  of  the  insured.  Benefit  is  payable  only  to  those 
who  have  made  at  least  twenty-four  fortnightly  contributions 
in  two  years.  The  duration  of  benefit  is  dependent  upon  the 
number  of  paid  up  contributions,  those  who  have  made  thirty- 
six  or  more  payments  being  entitled  to  benefit  during  120 
days.  As  in  Great  Britain,  applicants  for  benefit  must  regis- 
ter at  the  employment  exchange,  and  refusal  to  accept  suit- 
able employment  cancels  the  right  to  benefit.  Special  pro- 
visions were  made  for  men  demobilized  when  the  decree  came 
into  force  and  for  the  families  of  men  still  with  the  colors. 


SOCIAL  INSURANCE  447 

In  America,  as  well  as  in  Europe,  the  importance  of  com- 
pulsory unemployment  insurance  is  slowly  gaining  recogni- 
tion. The  oft-recurring  periods  of  general  industrial  de- 
pression and  the  prevalence  of  unemployment  in  the  numer- 
ous seasonal  trades  are  emphasizing  the  need  for  organized 
social  action.  In  the  winter  of  1914-1915,  particularly,  the 
alarming  extent  of  unemployment  called  forth  general  and 
deep  interest,  and  among  the  methods  most  often  urged  for 
dealing  with  this  evil  was  state  supervised  insurance.  Dur- 
ing the  same  winter  unemployment  insurance  bills  were 
drafted  for  introduction  in  several  states.  These  bills  provided 
for  compulsory,  contributory  insurance,  jointly  administered 
by  employers  and  employees  under  public  supervision,  and 
with  subsidies  to  organizations  voluntarily  entering  the  system. 
Ten  weeks'  benefit  was  tentatively  proposed,  with  the  proviso 
that  the  amount  should  be  as  large  as  possible.  Refunds  to 
employers  who  ran  their  plants  steadily,  and  to  workmen 
who  were  rarely  out  of  employment,  and  corresponding  penal- 
ties for  casual  labor,  were  included  for  the  purpose  of  stimu- 
lating regularization  of  industry.  To  obviate  unnecessary 
claims,  close  dependence  upon  an  efficient  system  of  public 
employment  exchanges  was  insisted  upon. 

Insurance  provides  a  dignified  method  of  financial  assist- 
ance to  unemployed  wage-earners,  the  majority  of  whom 
would  be  forced  either  to  seek  charity,  with  all  its  objection- 
able consequences,  or  to  suffer  privation.  The  out-of-work 
benefit,  although  amounting  to  but  a  fraction  of  the  regular 
wage,  is  still  sufficient  to  ward  off  for  a  time  complete  destitu- 
tion; it  thus  contributes  materially  toward  the  preservation 
of  the  workers'  character  and  physique  during  times  of  un- 
employment, and  prevents  their  falling  into  the  ranks  of 
the  unemployable  where  they  would  constitute  a  much  more 
difficult  problem. 

Of  significance,  also,  is  the  pressure  of  compulsory  insurance 
to  prevent  unemployment.  Workmen's  compensation  laws 
have  stimulated  the  development  of  the  "Safety  first"  move- 
ment. The  activity  of  the  German  sickness  insurance  funds 
affords  demonstration  of  the  preventive  possibilities  latent  in 
compulsory  health  insurance.  Somewhat  similar  results  can 
be  secured  from  compulsory  insurance  against  unemployment. 


448        PRINCIPLES  OP  LABOR  LEGISLATION 

An  indispensable  part  of  such  insurance  is  a  system  of  labor 
exchanges,  the  activity  of  which  is  a  powerful  means  of  re- 
ducing the  amount  of  involuntary  idleness.  The  financial 
claims  of  unemployment  insurance  on  industry  call  the  em- 
ployers' attention  to  the  regularization  of  business,  for  such 
regularization  would  reduce  the  amount  of  unemployment  and 
also  the  cost  of  insurance.  Refunds  to  employers  for  steadily 
employed  workers,  as  provided  by  the  English  act,  would  also 
be  an  inducement  to  preventive  measures.  The  indications 
are  that  this  branch  of  social  insurance  can  be  made  to  accom- 
plish with  respect  to  involuntary  idleness  a  very  considerable 
prevention  of  the  evil  itself,  which  from  every  point  of  view 
is  far  more  important  than  the  payment  of  benefits.  As  elo- 
quently stated  by  Leon  Bourgeois,  president  of  the  Inter- 
national Association  on  Unemployment:  "To  relieve  is  to 
wait  until  the  evil  has  befallen,  to  attempt  to  repair  it.  To 
relieve  is  to  wait  till  misery  has  come,  to  give  alms  to  the 
miserable.  But  alms  remains  at  best  a  meritorious  deed,  not 
a  social  act."  1  Elimination  of  the  condition  which  makes 
relief  necessary  is  the  social  act  contemplated  by  any  adequate 
system  of  social  insurance. 

But  in  this  matter,  as  in  all  matters  of  labor  legislation,  the 
results  attained  depend  in  the  last  analysis  upon  efficient 
administration. 

1  Address  delivered  at  the  Ghent  International  Exposition,  1913,  Ameri- 
can Labor  Legislation  Review,  March,  1914,  p.  18$. 

i 


CHAPTER  IX 
ADMINISTRATION 

Notwithstanding  all  that  has  been  said  regarding  the  prog- 
ress of  legislation  for  the  protection  of  the  workers,  it  is 
scarcely  worth  consideration  if  the  laws  are  not  enforced. 
More  important  than  the  hasty  enactment  of  additional  laws 
is  the  adoption  of  methods  of  administration  that  will  enforce 
them.  It  is  easy  for  politicians,  or  reformers,  or  trade  union 
officials,  to  boast  of  the  laws  which  they  have  secured  for 
labor,  and  it  is  just  as  easy  to  overlook  the  details,  or  appro- 
priations, or  competent  officials,  that  are  needed  to  make 
them  enforceable.  It  is  easy  to  say  that  little  or  nothing  can 
be  done  by  changing  the  "machinery  of  government"  and 
that  the  real  thing  to  do  is  to  get  "better  officials"  to  enforce 
the  laws,  and  better  judges  to  interpret  them.  But  it  is  only 
through  the  "machinery  of  government"  that  such  officials 
are  found  and  selected,  and  that  judges  can  have  the  facts 
needed  for  interpretation.  Administration  is  more  than  mech- 
anism. It  is  a  method  of  legislation.  It  is  the  means  of 
investigating,  drafting,  and  adopting  enforceable  laws.  It  is 
the  means  of  getting  and  keeping  competent  officials.  It  is 
the  method  of  determining  what  authority  or  powers  the 
officials  shall  have,  how  they  shall  execute  the  laws,  what 
procedure  they  shall  follow  in  court,  what  facts  they  shall 
investigate  for  the  use  of  the  court  in  its  duty  of  interpretation. 
Administration  is  legislation  in  action. 

In  a  constitutional  government,  executive  officers  are  not 
supposed  to  go  out  with  a  club  and,  on  their  own  initiative, 
force  people  into  obeying  what  they  happen  to  think  is  the 
law.  Before  they  act,  they  are  supposed  to  investigate.  The 
legislature,  too,  is  assumed  to  be  a  body  possessed  of  all  the 
facts,  and  its  acts  are  unconstitutional  when  they  disregard 
29 


45o       PRINCIPLES  OF  LABOR  LEGISLATION 

essential  facts  that  could  be  ascertained  by  investigation.  The 
court,  through  many  centuries  of  experience,  has  developed 
the  law  of  evidence  and  the  procedure  of  investigation  for  the 
trial  of  individuals  who  are  charged  with  the  violation  of  law. 
Finally,  when  the  higher  court  passes  upon  the  constitutional- 
ity of  the  law  itself,  it  does  so  with  reference  to  whether  the 
facts  are  such  as  call  for  the  law  and  whether  the  law  deals 
with  the  facts  in  accordance  with  the  higher  law  of  the  con- 
stitution. 

Thus  each  department  of  government  is  an  investigating 
body.  Only  by  investigation  can  each  be  restrained  from  the 
arbitrary  and  capricious  acts  that  make  despotism  abhorrent. 
This  is  the  significance  of  "reasonableness,"  which  runs 
through  every  requirement  of  the  constitution.  Reasonable- 
ness is  ascertained  by  investigating  all  the  facts  and  giving 
to  them  "such  weight  as  may  be  just  and  right  in  each  case."  l 
Thus  we  have  executive,  judicial,  and  legislative  investigations 
designed  to  guide  each  department  of  government  in  dealing 
with  all  the  facts  in  its  own  field. 

But  modern  industrial  conditions  have  become  so  complex, 
and  the  laws  deal  with  such  a  variety  of  facts,  that  a  fourth 
department  of  government  is  emerging  whose  purpose  is  pri- 
marily investigation.  This  is  administration.  If  administra- 
tion is  legislation  in  action,  it  is  because  administration  is  in- 
vestigation. It  unites  in  one  department  the  investigating 
activities  of  all  departments.  First  as  to  the  executive  de- 
partment and  its  field  of  investigation. 

i.  THE  EXECUTIVE 

The  history  of  the  so-called  "factory  acts"  shows  the  be- 
ginnings of  the  special  kind  of  investigation  needed  for  the 
enforcement  of  labor  law.  The  term  "factory  act"  or  "fac- 
tory legislation"  covers  all  legislation,  whether  applied  to 
factories  or  to  other  establishments,  respecting  such  matters 
as  health  and  safety  of  workers,  hours  of  labor,  child  labor, 
payment  of  wages,  company  stores,  and  so  on.  Factory  acts 
are  distinguishable  from  those  laws  which  determine  the 

'  Smyth  v.  Ames,  169  U.  S.  466,  18  Sup.  Ct.  418  (1897);  Freund,  Police 
Power,  1904,  p.  58. 


ADMINISTRATION  451 

fundamental  rights  and  duties  of  master  and  servant,  em- 
ployer and  employee,  in  the  labor  contract,  such  as  mechanics' 
lien,  wage  exemption,  employers'  liability,  and  the  law  of 
conspiracy.  The  distinction  is  not  always  clear  because  the 
line  between  the  two  is  drawn  differently  at  different  times 
and  in  different  countries.  In  general,  we  may  say  that  by 
factory  legislation  isjneani^thaLsidejD^^ 
requires  officials  for  continuous  inspectioji._and-  enforcement, 
whereas  other  labor  laws  are  enforced  only  when  a  private 
individual  brings  a  case  in  court.  The  distinction  tends  to 
disappear  in  proportion  as  special  administrative  machinery 
is  adopted  for  the  enforcement  of  other  laws.  For  this  reason 
the  term  "labor  legislation"  is  taking  the  place  of  "factory 
acts." 

The  early  factory  laws  provided  no  special  officers  for  their 
enforcement.  It  was  assumed  that  complaints  would  be 
made  by  the  injured  employees,  and  it  was  merely  provided 
that  the  ordinary  officers  attached  to  the  court,  such  as 
sheriffs,  policemen,  prosecuting  attorneys,  should  attend  to 
the  prosecutions  on  complaint.  Such  is  even  now  the  theory 
and  practice  in  some  states,  especially  in  the  South. 

It  required  several  years  to  discover  the  futility  of  this  kind 
of  administration.  Employees  would  not  make  complaints 
for  fear  of  being  discharged.  The  officials  had  other  duties 
more  urgent.  They  were  local  officials,  usually  afraid  of  the 
voters.^-' 

The  next  step,  beginning  in  the  decade  of  the  'sixties, 
was  the  creation  of  a  class  of  special  state  police,  known  as 
factory  inspectors,  whose  duty  it  was  to  investigate  the  con- 
ditions in  the  factories,  to  get  their  own  evidence  of  violations 
and  then  to  conduct  the  prosecutions  without  calling  upon 
employees  to  testify. 

The  first  state  to  appoint  this  class  of  special  police  was 
Massachusetts,  in  1867.  Since  that  time  the  method  has  been 
adopted  in  more  than  half  of  the  states  and  the  largest  force  of 
inspectors  in  any  state  is  that  in  New  York,  where  225  are 
authorized. 

The  investigations  made  by  executive  officials,  whether 
they  are  the  ordinary  officials  or  special  police,  have  a  limited 
and  special  purpose.  The  object  is  to  secure  evidence  for 


452       PRINCIPLES  OP  LABOR  LEGISLATION 

prosecutions  against  violators  of  the  law.  Having  secured 
their  evidence,  they  must  take  it  to  the  prosecuting  attorney 
or  district  attorney,  who  then  reinvestigates  the  facts  in  order 
to  determine  if  there  is  a  case  made  out  that  will  probably 
result  in  a  conviction  when  tried  in  court.  Finally,  when  the 
case  is  brought  to  trial,  the  court  again  investigates  all  the 
facts,  calling  witnesses  on  both  sides  and  providing  for  their 
cross-examination.  It  follows  precise  rules  of  evidence,  re- 
jecting what  is  immaterial  to  the  point  to  be  decided.  This 
evidence  may  be  heard  and  passed  upon  by  a  jury.  The  en- 
tire procedure  of  the  executive,  the  prosecutor,  and  the  court 
in  reaching  a  decision  and  enforcing  the  law  turns  upon  an 
investigation  of  the  facts  of  violation. 

For  various  reasons,  the  enforcement  of  labor  law  in 
American  states  through  investigations  by  factory  inspectors 
has  come  to  be  recognized  as  ineffective.  The  inspectors  are 
not  trained  for  their  work;  they  are  frequently  changed; 
they  are  poorly  paid,  and  they  have  but  little  opportunity 
for  promotion  and  a  professional  career.  Their  number  is 
often  inadequate  for  the  amount  of  work  required.  Much 
of  their  time  is  often  given  to  gathering  and  publishing  large 
volumes  of  belated  statistics  that  have  but  little  value  as  an 
aid  either  to  their  own  administration  or  to  the  legislature  in 
improving  the  laws.  Considerable  attention  has  been  given 
recently  to  these  deficiencies  and  they  are  justly  considered  to 
be  the  most  important  problem  of  labor  legislation.  Useless 
statistics  are  giving  way  to  timely  bulletins  on  safety,  health, 
and  other  specific  conditions  of  labor.  The  New  York  State 
Factory  Investigating  Commission  was  created,  after  a  deadly 
factory  fire,  to  inquire  why  it  was  that  the  laws  were  not  en- 
forced.1 The  United  States  Bureau  of  Labor  investigated  the 
enforcement  of  woman  and  child  labor  laws.2  The  American 
Association  for  Labor  Legislation  devotes  a  large  part  of  its 
attention  to  the  improvement  of  administration.3  Out  of 
these  investigations  and  a  widespread  distrust  of  the  existing 

1  See  New  York  State  Factory  Investigating  Commission,  Preliminary 
Report,  1912,  pp.  13,  14. 

2  Report  on  Condition  of  Woman  and  Child  Wage-Earners  in  the  United 
States  (Senate  Doc.  645,  6ist  Congress,  2d  Session),  1910-1913. 

3  See  its  official  organ,  the  American  Labor  Legislation  Review,  pub- 
lished quarterly,  beginning  1909. 


ADMINISTRATION  453 

methods  of  factory  inspection  have  come  the  beginnings  of 
serious  attempts  to  improve  the  character  of  administration. 
The  more  promising  of  these  attempts  are  described  in  the 
following  pages.  They  involve  not  only  the  executive  branch 
of  government,  but  also  the  legislative  and  judicial  branches. 

2.  THE  LEGISLATURE 

In  an  executive  investigation  no  question  is  raised  as  to 
the  reasons  for  the  enactment  of  the  law  itself.  The  question 
is  merely  whether  the  law  was  violated  or  not.  Investigations 
take  a  much  wider  scope  when  the  matter  is  being  prepared 
for  the  legislature  upon  which  it  shall  proceed  to  enact  a  law. 
The  first  investigations  on  a  subject  of  legislation  are  usually 
made  by  private  parties  or  by  persons  whose  object  it  is  to 
secure  legislation.  In  the  field  of  labor  the  American  working- 
men's  organizations,  as  early  as  1832,  published  reports  upon 
the  conditions  of  labor  showing  the  need  of  new  laws  for  their 
correction.  These  crude  investigations  have  been  followed 
and  multiplied  by  a  great  variety  of  associations  and  organiza- 
tions. In  the  decades  of  the  'forties  and  'fifties  industrial 
congresses  were  held  in  different  cities  and  investigations  of 
shop  and  factory  conditions  were  made.  The  International 
Workingmen's  Association,  founded  by  Karl  Marx  and  the 
British  trade  unionists  in  1864,  and  spreading  to  the  United 
States,  contained  as  one  of  its  objects  the  collection  of  informa- 
tion and  carrying  on  of  investigations?  of  labor  conditions  in 
different  countries  of  the  world.  The  National  Labor  Union 
in  1868,  the  industrial  congresses  of  1873  and  1874,  the  Knights 
of  Labor  and  the  American  Federation  of  Labor  have  all  in 
turn  conducted  investigations  on  all  the  aspects  of  labor 
problems  that  in  their  opinion  needed  legislation. 

In  the  decade  of  the  'eighties  private  organizations  like  the 
Consumers'  League  began  investigations,  especially  of  child 
labor  and  sweating  systems.  The  National  Child  Labor  Com- 
mittee, founded  in  1904,  has  had  a  systematic  plan  and  a  wide 
field  of  investigation.  In  1900  the  first  international  associa- 
tion for  the  investigation  of  labor  conditions  in  all  countries 
was  organized  at  the  Paris  Exposition,  under  the  name  of  the 
International  Association  for  Labor  Legislation.  Up  to  1920 


454      PRINCIPLES  OF  LABOR  LEGISLATION 

it  had  organized  sections  in  fifteen  countries.1  In  some  cases 
affiliations  were  made  with  previously  existing  private  or- 
ganizations. The  object  for  which  the  International  Asso- 
ciation was  founded  was  to  bring  about  uniform  legislation 
through  treaties  entered  upon  by  independent  governments. 
The  procedure  adopted  was  to  hold  international  biennial  con- 
gresses in  Switzerland,  at  which  the  conditions  of  labor  and 
the  laws  of  different  countries  were  reported  upon  and  plans 
for  uniform  laws  were  drafted.  Through  the  courtesy  of  the 
government  of  Switzerland  the  diplomatic  representatives  of 
the  different  nations  would  then  be  invited  to  meet  and  formu- 
late "conventions"  carrying  out,  as  far  as  possible,  the  plans 
recommended  by  the  preceding  congress  of  the  Association. 
When  these  "conventions"  were  agreed  upon  the  several 
countries  were  expected  to  enact  the  desired  legislation  and 
enforce  it  in  their  own  jurisdiction.  When  any  country 
adopted  the  recommendations  of  a  convention  it  became 
equivalent  to  a  treaty  between  that  and  other  countries  which 
had  acted  in  the  same  way.  The  first  international  "con- 
ventions" of  this  kind  were  those  of  1906,  forbidding  the  night 
work  of  women  2  and  the  use  of  poisonous  phosphorus  in  the 
manufacture  of  matches.3  The  former  was  quickly  adopted 
by  fourteen  nations  and  the  latter  by  eleven. 

The  American  section  of  the  International  Association  was 
organized  in  1906  with  the  object  of  investigating  conditions 
underlying  labor  laws  and  disseminating  information  leading 
to  the  enactment  and  efficient  enforcement  of  protective  legis- 
lation. It  has  conducted  investigations,  held  national  con- 
ferences, published  reports,  drafted  bills,  and  secured  the 
enactment  into  law  of  progressive  standards. 

The  characteristic  of  the  activities  of  the  International 
Association  and  its  fifteen  national  sections  is  scientific  in- 
vestigations conducted  with  the  definite  object  of  securing 
needed  legislation.  Like  other  private  associations  its  work 
is  largely  propagandist  and  does  not  carry  official  weight. 


Austria,  Belgium,  Denmark,  England,  Finland,  France,  Germany, 
Holland,  Hungary,  Italy,  Norway,  Spain,  Sweden,  Switzerland,  and  the 
United  States. 


2  See  "Night  Work,"  p.  273. 

3  See  "  Prohibition  of  Substai 


ubstances  or  Instruments,"  p.  354. 


ADMINISTRATION  455 

However,  the  International  Association,  with  permanent  head- 
quarters in  a  government  building  at  Basle,  Switzerland,  has 
been  in  receipt  of  subventions  from  twenty-two  different 
national  governments.  In  this  respect  it  marks  the  beginning 
of  an  affiliation  between  private  investigations  and  those 
conducted  by  government.1  As  frequently  occurs  with  pio- 
neer social  organizations,  certain  of  the  activities  of  the  Inter- 
national Association  have  now  been  taken  over  officially,  in 
this  case  by  the  International  Labor  Office  instituted  under 
the  League  of  Nations.2 

Governmental  study  of  labor  conditions  in  America  also 
dates  back  to  the  early  part  of  last  century.  As  early  as  1838 
the  state  legislature  of  Pennsylvania  conducted  an  investi- 
gation of  woman  and  child  labor  in  the  factories  of  that  state.3 
Massachusetts  followed  in  1845.  Many  states  and  the 
national  government  have  at  different  times  carried  on  in- 
vestigations of  this  kind  for  special  purposes  by  temporary 
committees  of  the  legislature  or  by  commissions  appointed 
for  the  purpose.  During  the  years  IQIQ  to  ion;  there  were 
nearly  thirty  state  commissions  and  one  federal  commission 
for  the  study  of  industrial  accidents  and  the  drafting  of  laws 
on  workmen's  compensation.  Another  notable  example  is  the 
Factory  Investigating  Commission  of  New  York,  whose  care- 
ful studies  led  to  the  adoption  in  1914  of  a  large  number 
of  labor  laws  by  the  legislature  of  that  state.  In  the  broader 
field  of  federal  investigations,  a  committee  of  the  Senate  of 
the  United  States  in  1885  held  extended  hearings  on  the  sub- 
ject of  capital  and  labor.  The  Industrial  Commission,  com- 
posed of  members  of  Congress  and  appointees  of  the  President, 
made  a  report  of  nineteen  volumes  on  the  same  and  other 
subjects  in  1901.  Other  temporary  federal  commissions  have 
been  the  one  on  Immigration  in  1911,  and  the  Commission  on 
Industrial  Relations  of  1913. 

The  origin  of  these  temporary  legislative  investigations  was 
a  demand  on  the  part  of  private  organizations  either  for 
definite  legislation  or  for  official  inquiry  which  would  have 


1  See  Bibliography,  p.  525. 

2  See  p.  455. 

3  Pennsylvania  Senate,  Journal,  Vol.  II,  1837-1838. 


456       PRINCIPLES  OF  LABOR  LEGISLATION 

greater  weight  through  the  power  of  compelling  witnesses  to 
testify  and  the  conclusiveness  which  could  not  be  secured  by 
private  societies.  Their  intent  was  both  to  inform  the  public 
and  to  aid  the  legislature. 

The  first  state  in  the  world  to  establish  a  permanent  bureau 
for  the  investigation  of  labor  conditions  was  Massachusetts 
in  1869.  Under  the  name  of  bureau  of  labor  statistics,  or 
bureau  of  labor,  such  permanent  machinery  of  investigation 
has  been  established  in  about  forty  states,  by  the  federal 
government  with  its  Department  of  Labor,  first  established 
in  1884,  and  by  all  national  governments  where  the  problem 
of  labor  and  capital  has  become  prominent.  These  bureaus 
were  at  first  established  primarily  on  the  petition  of  labor  or- 
ganizations.1 Their  scope  has  been  broadened  in  some  cases, 
but  their  largest  activity  has  been  the  collection  of  statistics 
of  wages,  hours,  and  conditions  of  labor.  At  times  they  are 
called  upon  by  the  legislature  to  make  investigations  which 
otherwise  would  have  been  conducted  by  legislative  commit- 
tees or  temporary  commissions,  such  as  the  investigation  of 
woman  and  child  labor  by  the  federal  Bureau  of  Labor  in 
1908. 

A  certain  ineffectiveness  of  these  bureaus  has  sprung  from 
their  desire,  as  permanent  bureaus,  to  maintain  a  non-com- 
mittal attitude  in  presenting  facts,  and  they  generally  refrain 
from  making  recommendations  for  legislative  action.  An  ob- 
stacle, also,  in  the  way  of  these  bureaus  for  purposes  of  legis- 
lative investigation  arises  from  the  fact  that  they  are,  in  near- 
ly all  cases,  combined  with  the  special  police  or  factory  in- 
spection department,  whose  business  is  investigation  for  the 
purpose  of  prosecution.  A  person  investigated  for  crime  does 
not  readily  furnish  the  same  investigator  with  information 
for  statistics. 

The  fullest  development  to  date  of  official  bureaus  for 
ascertaining  facts  as  a  basis  for  legislative  enactment  is  found 
in  the  international  labor  organization  set  up  by  the  treaty 
which  concluded  the  world  war.  Part  XIII  of  the  treaty 
declares  that  permanent  peace  such  as  is  sought  by  the 
League  of  Nations  "can  be  established  only  if  it  is  based  on 

lPowderly,  Thirty  Years  of  Labor,  1889,  p.  303. 


ADMINISTRATION  457 

social  justice,"  and  that  the  failure  of  any  nation  to  adopt 
humane  labor  standards  "is  an  obstacle  in  the  way  of  other 
nations  which  desire  to  improve  the  conditions  in  their  own 
countries."  To  arrive  at  desirable  international  minimum 
protective  standards  a  permanent  International  Labor  Office 
is  created,  with  quarters  at  the  seat  of  the  League  of  Nations. 
The  office  is  to  be  in  charge  of  a  governing  body  of  twenty- 
four  persons,  twelve  representing  the  governments,  six  the 
employers,  and  six  the  workers  of  the  affiliated  countries, 
selected  for  three-year  terms.  Eight  of  the  twelve  govern- 
ment members  are  to  represent  the  eight  nations  of  chief 
industrial  importance.  The  governing  body  appoints  a  di- 
rector of  the  office,  who  chooses  the  staff,  "a  certain  number" 
of  whom  must  be  women.  The  duties  of  the  organization 
include  collecting  and  distributing  labor  data,  conducting 
investigations,  publishing  a  periodical  on  employment  prob- 
lems, and  preparing  the  order  of  business  for  the  International 
Labor  Conferences. 

The  International  Labor  Conferences  which  the  office  thus 
assists  in  conducting  are  to  be  held  at  least  yearly  at  the  seat 
of:  the  League  of  Nations  or  at  some  other  place  previously 
selected.  •  They  are  composed  of  four  delegates  from  each 
country  attached  to  the  league,  divided  among  the  govern- 
ment, the  workers,  and  the  employers,  in  the  same  proportion 
as  the  members  of  the  governing  body,  namely,  two,  one,  and 
one,  respectively.  The  labor  and  employer  delegates  are  to 
be  named  by  the  governments  ' '  in  agreement  with  the  indus- 
trial organizations,  if  such  organizations  exist,  which  are  most 
representative  of  employers  and  workpeople"  in  the  respective 
countries.  Delegates  may  be  accompanied  by  advisers,  and 
when  questions  affecting  women  are  before  the  conference  at 
least  one  of  the  advisers  "should  be"  a  woman.  At  the  first 
annual  conference,  held  in  Washington,  D.  C.,  during  October 
and  November,  1919,  some  thirty  countries  were  represented. 
Recommendations  and  draft  conventions  were  adopted  on 
such  matters  as  the  eight-hour  day  and  forty-eight-hour  week, 
public  employment  offices,  reduction  of  child  labor,  prohibition 
of  women's  work  immediately  before  and  after  childbirth, 
prohibition  of  night  work  for  women  and  young  persons,  pro- 
tection against  anthrax,  lead  poisoning,  and  white  phosphorus 


458       PRINCIPLES  OF  LABOR  LEGISLATION 

poisoning,  and  establishment  of  government  factory  inspec- 
tion and  health  services.1 

3.  THE  JUDICIARY 

In  the  United  States  the  judicial  branch  of  government 
may  be  called  upon  to  make  investigations  of  labor  condi- 
tions in  order  to  render  decisions  on  the  constitutionality  of 
laws  enacted  by  the  legislature.  These  investigations  are 
quite  different  in  character  from  those,  previously  described, 
in  a  trial  for  the  violation  of  statutes.  In  a  trial  the  question 
to  be  decided  is  that  of  a  particular  violation  of  a  law.  In 
questions  of  constitutionality  the  question  is  the  conformity 
of  the  law  with  the  constitution.  Here  the  court  must  in- 
vestigate the  question  as  to  whether  there  is  really  an  evil 
condition  that  needs  to  be  remedied;  whether  this  condition 
is  a  menace  to  the  public  or  whether  the  statute  is  merely  a 
benefit  to  private  individuals  without  a  public  purpose; 
whether  under  the  actual  conditions  the  legislature  confiscates 
property,  discriminates  between  individuals,  and  thus  denies 
the  equal  protection  of  the  laws.2 

In  making  such  an  investigation  the  court  might  appoint  a 
referee  or  master  in  chancery  to  take  evidence  and  investigate 
the  facts.  This  procedure  is  often  followed  in  the  regulation 

1  For  text  of  the  labor  clauses  in  the  peace  treaty  and  of  the  recom- 
mendations and  draft  conventions  adopted  by  the  first  conference,  see 
American  Labor  Legislation  Review,  September  and  December,  1919. 
_  *  "The  principle  involved  in  these  decisions  is  that  where  the  legisla- 
tive action  is  arbitrary  and  has  no  reasonable  relation  to  a  purpose 
which  it  is  competent  for  government  to  effect,  the  legislature  transcends 
the  limits  of  its  powers,  in  interfering  with  liberty  of  contract;  but  where 
there  is  reasonable  relation  to  an  object  within  the  governmental  au- 
thority the  exercise  of  legislative  discretion  is  not  subject  to  judicial 
review."  (Chicago,  B.  &  Q.  R.  Co.  t>.  McGuire,  219  U.  S.  549,  31  Sup. 
Ct.  259  (1911).) 

"In  every  case  that  comes  before  this  court,  therefore,  where  legisla- 
tion of  this  character  is  concerned,  and  where  the  protection  of  the 
federal  constitution  is  sought,  the  question  necessarily  arises:  Is  this  a 
fair,  reasonable,  and  appropriate  exercise  of  the  police  power  of  the 
state,  or  is  it  an  unreasonable,  unnecessary,  and  arbitrary  interference 
with  the  right  of  the  individual  to  his  personal  liberty,  or  to  enter  into 
those  contracts  in  relation  to  labor  which  may  seem  to  him  appropriate 
or  necessary  for  the  support  of  himself  and  his  family."  (Lochner  v. 
New  York,  198  U.  S.  45,  25  Sup.  Ct.  539  (1905).)  See  also  "Public 
Benefit,"  p.  24,  and  "Equal  Protection  of  the  Laws,"  p.  28. 


ADMINISTRATION  459 

of  public  utilities.  The  referee,  usually  a  lawyer  appointed 
by  the  court,  calls  before  him  accountants,  engineers,  experts, 
as  needed,  and  makes  a  report  to  the  court  of  the  facts.  Such 
a  practice,  however,  has  not  been  followed  in  cases  where  the 
constitutionality  of  labor  laws  is  called  in  question.  This  is 
probably  owing  to  the  fact  that  legislation  of  this  character 
covers  a  large  variety  of  subjects,  requires  a  variety  of  wit- 
nesses and  extended  technical  investigations,  and  that  the 
court  is  not  itself  equipped  with  the  staff  of  investigators  com- 
petent to  secure  and  furnish  the  information.  The  result  is 
that  social  and  economic  conditions  are  not  investigated  by 
the  court  and  it  is  compelled  to  fall  back  upon  the  principles 
of  constitutional  law,  without  full  knowledge  of  the  conditions 
to  which  the  statute  applies.  Examples  of  decisions  without 
investigation  of  conditions  are  as  follows: 

The  Colorado  Supreme  Court  in  declaring  unconstitutional 
a  law  which  limited  the  hours  of  labor  in  smelters  to  eight 
a  day  said: 

This  act  is  an  unwarrantable  interference  with,  and  infringes,  the  right 
of  both  the  employer  and  employee  in  making  contracts  relating  to  a 
purely  private  business,  in  which  no  possible  injury  to  the  public  can 
result.1 

Likewise  Judge  Gray  explained  in  the  following  language 
why  the  New  York  court  nullified  a  law  prohibiting  night  work 
for  women: 

I  think  that  the  legislature,  in  preventing  the  employment  of  an 
adult  woman  in  a  factory,  and  in  prohibiting  her  to  work  therein  before 
six  o'clock  in  the  morning,  or  after  nine  o'clock  in  the  evening,has  over- 
stepped the  limits  set  by  the  constitution  of  the  state  to  the  exercise 
of  the  power  to  interfere  with  the  rights  of  citizens.  ...  It  is  clear,  as 
it  seems  to  me,  that  this  legislation  cannot,  and  should  not,  be  upheld 
as  a  proper  exercise  of  the  police  power.  It  is,  certainly,  discrimi- 
native against  female  citizens,  in  denying  to  them  equal  rights  with 
men  in  the  same  pursuits.2 

In  the  following  cases  the  court  clearly  states  that  sufficient 
facts  have  not  been  presented  to  prove  that  legislation  of 
that  character  is  necessary  to  conserve  the  public  welfare. 

1  In  re  Morgan,  26  Colo.  415,  58  Pac.  1071  (1899). 

2  People  v.  Williams,  189  N.  Y.  131,  81  N.  E.  778  (1907). 


46o       PRINCIPLES  OF  LABOR  LEGISLATION 
In  the  first  Ritchie  case  the  Illinois  Supreme  Court  said: 

There  is  no  reasonable  ground — at  least  none  which  has  been  made 
manifest  to  us  in  the  arguments  of  counsel — for  fixing  eight  hours  in 
one  day  as  the  limit  which  woman  can  work  without  injury  to  her 
physique,  and  beyond  which,  if  she  works,  injury  will  necessarily  fol- 
low. But  the  police  power  of  the  state  can  only  be  permitted  to 
limit  or  abridge  such  a  fundamental  right  as  to  make  contracts,  when 
the  exercise  of  such  power  is  necessary  to  promote  the  health,  com- 
fort, welfare,  or  safety  of  society  or  the  public,  and  it  is  questionable 
whether  it  can  be  exercised  to  prevent  injury  to  the  individual  en- 
gaged in  a  particular  calling.1 

In  the  Lochner  case,  where  a  ten-hour  law  for  bakers  was 
tested,  the  court  had  before  it  only  a  limited  amount  of  gen- 
eral information  on  the  subject,  without  any  special  investiga- 
tion. The  majority  ruled  that  the  facts  were  not  conclusive 
to  warrant  such  legislation  for  the  following  reasons : 

We  think  the  limit  of  the  police  power  has  been  reached  and  passed 
in  this  case.  There  is,  in  our  judgment,  no  reasonable  foundation  for 
holding  this  to  be  necessary  or  appropriate  as  a  health  law  to  safe- 
guard the  public  health,  or  the  health  of  the  individuals  who  are 
following  the  trade  of  a  baker.  .  .  .  We  think  that  there  can  be  fair 
doubt  that  the  trade  of  a  baker,  in  and  of  itself,  is  not  an  unhealthy 
one  to  that  degree  which  would  authorize  the  legislature  to  interfere 
with  the  right  to  labor,  and  with  the  right  of  free  contract  on  the  part 
of  the  individual,  either  as  employer  or  employee.  In  looking  through 
statistics  regarding  all  trades  and  occupations  it  may  be  true  that 
the  trade  of  a  baker  does  not  appear  to  be  as  healthy  as  some  other 
trades,  and  is  also  more  healthy  than  still  others.  To  the  common 
understanding  the  trade  of  a  baker  has  never  been  regarded  as  an 
unhealthy  one.  .  .  .  There  must  be  more  than  the  mere  fact  of  the 
possible  existence  of  some  small  amount  of  unhealthiness  to  warrant 
legislative  interference  with  liberty.2 

The  foregoing  cases  illustrate  the  attitude  of  the  courts 
where  investigations  of  the  facts  have  not  been  brought  to 
their  attention,  or  where  they  have  been  compelled  to  de- 
pend upon  such  knowledge  as  they  themselves  might  have 
regarding  such  facts.  In  such  a  case  the  court  might  take 
what  it  calls  "judicial  notice"  of  facts  even  though  they  are 

1  Ritchie  v.  People,  155  111.  98,  at  p.  113,  40  N.  E.  454  (1895). 

s  Lochner  v.  New  York,  198  U.  S.  45,  at  p.  58,  25  Sup.  Ct.  539  (1905). 


ADMINISTRATION  461 

not  presented  in  evidence,  and  might  rely  upon  what  it  con- 
siders "common  knowledge,"  or  that  kind  of  knowledge  which 
a  reasonable  person  ordinarily  well  informed  might  be  sup- 
posed to  have  upon  the  subject.  Common  knowledge  may 
go  still  further  and  include  investigations  made  by  private 
societies  or  by  individuals  or  attorneys  which  appear  to  the 
court  as  presenting  the  facts  pertaining  to  the  case.  "Courts 
will  take  notice  of  whatever  is  generally  known  within  the 
limits  of  their  jurisdiction."  1  "A  common  belief,  like  com- 
mon knowledge,  does  not  require  evidence  to  establish  its 
existence,  but  may  be  acted  upon  without  proof  by  the  legis- 
lature and  the  courts.  While  the  power  to  take  judicial  notice 
is  to  be  exercised  with  caution  and  due  care  taken  to  see  that 
the  subject  comes  within  the  limits  of  common  knowledge, 
still,  when  according  to  the  memory  and  conscience  of  the 
judge,  instructed  by  recourse  to  such  sources  of  information 
as  he  deems  trustworthy,  the  matter  is  clearly  within  those 
limits,  the  power  may  be  exercised  by  treating  the  fact  as 
proved  without  allegation  or  proof."  2 

The  first  notable  example  of  a  decision  on  the  constitution- 
ality of  a  law  based  upon  investigations  of  this  kind  is  that 
of  the  Holden  v.  Hardy  case,  in  1898.  In  that  case  the  at- 
torney in  defense  of  the  law  made  a  partial  investigation  of 
the  health  of  workmen  in  mines  and  smelters  which  was  pre- 
sented in  his  brief  to  the  court.  Upon  this  information  the 
court  took  exactly  the  opposite  view  of  the  Colorado  court 
above  cited,  and  held  that  the  law  was  constitutional  upon 
the  following  grounds: 

While  the  general  experience  of  mankind  may  justify  us  in  believing 
that  men  may  engage  in  ordinary  employments  more  than  eight  hours 
per  day  without  injury  to  their  health,  it  does  not  follow  that  labor 
for  the  same  length  of  time  is  innocuous  when  carried  on  beneath  the 
surface  of  the  earth,  when  the  operative  is  deprived  of  fresh  air  and 


Quoted  from  Brown  ».  Piper,  91  U.  S.  37  (1875),  in  People  v.  Charles 


2  Quoted  from  Viemeister  v.  White,  179  N.  Y.  235,  at  p.  240,  72  N.  E.  97 
(1904),  in  People  v.  Charles  Schweinler  Press,  214  N.  Y.  395,  108  N.  E. 
641  (1915).  See  also  cases  quoted  in  Mr.  Brandeis'  brief,  published  by 
the  National  Consumers'  League,  in  Muller  v.  Oregon,  208  U.  S.  412, 
28  Sup.  Ct.  324  (1908). 


462       PRINCIPLES  OF  LABOR  LEGISLATION 

sunlight,  and  is  frequently  subjected  to  foul  atmosphere  and  a  very 
high  temperature,  or  to  the  influence  of  refining  or  smelting.1 

It  is  to  be  noticed  that  while  the  Supreme  Court  held  that 
the  questions  of  law — that  is,  the  principles  of  public  benefit 
and  equal  protection  of  the  laws — were  identical  in  the  Loch- 
ner  case  and  the  Holden  v.  Hardy  case,  the  former  was  de- 
clared unconstitutional,  while  the  latter  was  upheld  because 
of  difference  in  fact.  Similarly,  Mr.  Brandeis  in  his  brief 
in  Muller  v.  Oregon  quotes  the  law  as  propounded  in  the 
Lochner  case  but  argues  that  the  facts  "establish  .  .  .  con- 
clusively, that  there  is  reasonable  ground  for  holding  that 
to  permit  women  in  Oregon  to  work  in  a  'mechanical  estab- 
lishment, or  factory,  or  laundry'  more  than  ten  hours  in  one 
day  is  dangerous  to  the  public  health,  safety,  morals,  or  wel- 
fare." The  court,  which  sustained  the  law,  concurred  in 
counsel's  contention,  as  indicated  by  the  following  quotation: 

In  patent  cases  counsel  are  apt  to  open  the  argument  with  a  discussion 
of  the  state  of  the  art.  It  may  not  be  amiss,  in  the  present  case, 
before  examining  the  constitutional  question,  to  notice  the  course  of 
legislation,  as  well  as  expression  of  opinions  from  other  than  judicial 
sources.  In  the  brief  filed  by  Mr.  Louis  D.  Brandeis  for  the  defend- 
ant in  error  is  a  very  copious  collection  of  all  these  matters,  an  epitome 
of  which  is  found  in  the  margin.  .  .  .  The  legislation  and  opinions  re- 
ferred to  in  the  margin  may  not  be,  technically  speaking,  authorities, 
and  in  them  is  little  or  no  discussion  of  the  constitutional  question 
presented  to  us  for  determination,  yet  they  are  significant  of  a  wide- 
spread belief  that  woman's  physical  structure,  and  the  functions  she 
performs  in  consequence  thereof,  justify  special  legislation  restricting 
or  qualifying  the  conditions  under  which  she  should  be  permitted  to 
toil.  .  .  .  When  a  question  of  fact  is  debated  and  debatable,  and  the 
extent  to  which  a  special  constitutional  limitation  goes  is  affected  by 
the  truth  in  respect  to  that  fact,  a  widespread  and  long-continued 
belief  concerning  it  is  worthy  of  consideration.  We  take  judicial 
cognizance  of  all  matters  of  general  knowledge.2 

A  supreme  court  may  even  squarely  reverse  itself  when  it 
finds  that  a  former  decision  was  made  without  full  knowledge 
of  the  facts.  We  have  quoted  above  the  language  of  the 

1  Holden  v.  Hardy,  169  U.  S.  366,  at  p.  395,  18  Sup.  Ct.  383  (1898). 
8  Muller  v.  Oregon,  208  U.  S.  412,  28  Sup.  Ct.  324  (1908). 


ADMINISTRATION  463 

New  York  court,  in  1907,  in  the  case  of  People  v.  Williams, 
in  which  the  court,  without  the  aid  of  official  investigation, 
held  that  a  law  prohibiting  night  work  for  women  was  un- 
constitutional. Eight  years  later  the  same  court  overthrew 
its  former  decision,  when  the  legislature  had  again  enacted  a 
similar  law,  this  time,  however,  following  the  recommenda- 
tions of  the  state  factory  investigating  commission.  The  court 
justified  itself  as  follows: 1 

It  is  urged  that  whatever  might  be  our  original  views  concerning  this 
statute,  our  decision  in  People  v.  Williams  ...  is  an  adjudication 
which  ought  to  bind  us  to  the  conclusion  that  it  is  unconstitutional. 
While  it  may  be  that  this  argument  is  not  without  an  apparent  and 
superficial  foundation  and  ought  to  be  fairly  met,  I  think  that  a  full 
consideration  of  the  Williams  case  and  of  the  present  one  will  show 
that  they  may  be  really  and  substantially  differentiated,  and  that 
we  should  not  be  and  are  not  committed  by  what  was  said  and  de- 
cided in  the  former  to  the  view  that  the  legislature  had  no  power  to 
adopt  the  present  statute.  .  .  .  While  theoretically  we  may  have  been 
able  to  take  judicial  notice  of  some  of  the  facts  and  of  some  of  the 
legislation  now  called  to  our  attention  as  sustaining  the  belief  and 
opinion  that  night  work  in  factories  is  widely  and  substantially  in- 
jurious to  the  health  of  women,  actually  very  few  of  these  facts  were 
called  to  our  attention,  and  the  argument  to  uphold  the  law  on  that 
ground  was  brief  and  inconsequential. 

Especially  and  necessarily  was  there  lacking  evidence  of  the  extent 
to  which,  during  the  intervening  years,  the  opinion  and  belief  have 
spread  and  strengthened  that  such  night  work  is  injurious  to  women; 
of  the  laws,  as  indicating  such  belief,  since  adopted  by  several  of  our 
own  states  and  by  large  European  countries,  and  the  report  made  to 
the  legislature  by  its  own  agency,  the  factory  investigating  commis- 
sion, based  on  investigation  of  actual  conditions  and  study  of  scien- 
tific and  medical  opinion  that  night  work  by  women  in  factories  is 
generally  injurious  and  ought  to  be  prohibited.2 

Not  only  have  the  courts  changed  their  opinion  as  to 
actual  conditions  because  of  investigations,  but  as  the  in- 

1  People  v.  Charles  Schweinler  Press,  214  N.  Y.  395,  108  N.  E.  639 

(1915)- 

2  See  also  McLean  v.  Arkansas,  211  U.  S.  539,  29  Sup.  Ct.  206  (1909), 
in  which  the  court  upholds  a  screen  law  on  the  basis  of  investigations 
made  by  a  commission;   and  State  ex  rel.  Yaple  v.  Creamer,  85  Ohio  St. 
349,  97  N.  E.  602  (1912),  where  the  court  accepts  the  findings  of  a  special 
investigating  committee  as  conclusive  "to  sustain  the  exercise  of  the 
police  power"  in  workmen's  compensation  legislation. 


464       PRINCIPLES  OF  LABOR  LEGISLATION 

vestigations  educated  the  public  and  created  sentiment  in 
favor  of  such  legislation,  courts  have  even  indirectly  reversed 
themselves  on  principles  of  law.  The  two  Ritchie  cases  in 
Illinois  offer  an  instance.  In  the  first  case  (1895)  one  of  the 
determining  objections  that  the  court  raised  was  that  "it  is 
questionable  whether  it  (the  police  power)  can  be  exercised 
to  prevent  injury  to  the  individual  engaged  in  a  particular 
calling."  l  In  other  words,  the  court  ruled  that  legislation 
protecting  the  health  of  the  public  or  society  was  a  proper 
exercise  of  the  police  power,  but  that  it  was  improper  when 
aimed  to  protect  individuals  against  themselves.2  The  court, 
in  the  second  Ritchie  case  (1910),  found  it  convenient  to  avoid 
reference  to  this  principle  and  scrupulously  omits  that  portion 
in  quoting  from  the  case.  According  to  the  second  opinion 
the  difference  turned,  not  on  principle,  but  on  fact.  The  court 
said: 

The  second  proposition  upon  which  the  cases  differ  is  this:  the  act  of 
1893  provides  for  an  eight-hour  day  in  which  women  shall  be  permitted 
to  work  in  mechanical  establishments,  or  factories  or  laundries.  Can 
it  be  said  if  the  limitation  upon  the  number  of  hours  which  women 
were  permitted  to  work  in  the  designated  callings  in  the  act  of  1893 
had  been  fixed  at  ten  hours  instead  of  eight  hours  the  court  would 
have  held  the  act  unconstitutional  as  an  unreasonable  exercise  of  the 
police  power  of  the  state  or  that  the  act  would  have  been  held  obnox- 
ious to  the  constitution  as  special  or  class  legislation?  We  do  not 
think  it  can  be  so  said,  as  there  is  throughout  the  opinion  a  veiled 
suggestion  which  indicates  that  it  was  the  opinion  of  the  court  that 
the  limitation  of  the  right  to  work  longer  than  eight  hours  was  an 
unreasonable  limitation  upon  the  right  of  contract.3 

The  principle  that  the  police  power  cannot  be  exercised  to 
protect  individuals  against  themselves  would  overthrow  a  ten- 
hour  law  as  well  as  an  eight-hour  law.  But  the  fact  that  a 
ten-hour  law  is  less  restrictive  than  an  eight-hour  law  causes 

1  Ritchie  v.  People,  155  111.  98,  40  N.  E.  454  (1895). 

2  For  a  critical  discussion  of  this  principle  see  Freund,  Police  Power,  p. 
141;    for  an  acceptable  presentation  see  In  re  Morgan,  26  Colo.  415,  58 
Pac.  1071  (1899);   and  In  re  Jacobs,  98  N.  Y.  98  (1885).     In  Holden  v. 
Hardy  the  United  States  Supreme  Court  repudiates  this  principle,  hold- 
ing that  it  is  constitutional  under  the  police  power  to  enact  legislation 
either  to  protect  the  public  or  to  protect  individuals  against  themselves 
or  acts  of  others.     See  "Public  Benefit,"  p.  24. 

3  Ritchie  v.  Wayman,  244  111.  509,  91  N.  E.  695,  at  p.  700  (1910). 


ADMINISTRATION 


465 


the  Illinois  court  to  abandon  the  principle  and  to  inquire 
into  the  facts.  By  a  similar  reliance  on  facts  the  Supreme 
Court  of  the  United  States  holds  that  an  eight-hour  law  is 
constitutional  and  reasonable.1 

The  foregoing  illustrations  have  been  cited,  among  many 
that  might  be  given,  on  account  of  the  peculiarly  high  position 
occupied  by  American  courts  through  their  power  to  veto 
legislation  on  the  ground  of  unconstitutionality.  Abundant 
criticism  of  the  courts  for  exercising  this  power,  and  insistent 
demands  for  constitutional  amendments  abrogating  the  power, 
have  been  repeatedly  made  for  more  than  a  hundred  years. 
Without  pretending  to  enter  upon  a  full  discussion  of  these 
criticisms  and  demands,  one  thing  is  apparent:  they  disregard 
the  great  importance  which  the  court  ascribes  to  reliable  and 
complete  investigations  of  actual  conditions.  The  foregoing 
illustrations,  as  well  as  others  found  in  this  book,  indicate 
that  criticism  should  be  directed  rather  against  legislatures 
and  administrative  authorities  who  enact  and  administer  laws 
without  reliable  knowledge  of  the  conditions  with  which  they 
are  dealing.  The  principles  of  the  constitution  and  the  inter- 
pretations by  the  Supreme  Court  are,  on  the  whole,  broad 
enough  to  admit  labor  legislation  in  so  far  as  based  on  au- 
thenticated facts,  and  much  broader  than  is  necessary  to 
admit  legislation  that  is  actually  enforceable  by  the  existing 
defective  machinery  of  administration.  For  the  present,  at 
any  rate,  it  is  not  so  much  attacks  on  the  courts  that  may 
be  expected  to  bring  progressive  labor  legislation  as  reliable 
investigation  of  actual  conditions  by  competent  administra- 
tive authorities  whose  work  will  command  the  respegt,  not 
only  of  courts,  but  of  legislatures,  of  employers  and  employees, 
of  the  people  at  large.  It  is  this  gap  in  the  American  system 
of  labor  law  that  is  sought  to  be  filled  by  the  so-called  industrial 
commission. 


4.  THE  INDUSTRIAL  COMMISSION 

In  all  of  the  investigations  above  mentioned,  even  those 
carried  on  by  the  best  qualified  experts,  there  is  lacking  the 

1  Miller  v.  Wilson,  236  U.  S.  373,  35  Sup.  Ct.  342  (1915).     See  "Maxi- 
mum Hours,  Women,"  p.  246. 


466       PRINCIPLES  OF  LABOR  LEGISLATION 

important  feature  of  prima  facie  evidence,  or  of  evidence  that 
is  conclusive  as  to  the  facts  in  a  trial  in  court.  Those  in- 
vestigations were  not  conducted  under  the  rules  of  evidence 
which  the  court  relies  upon,  and  it  therefore  treats  them 
merely  as  common  knowledge.  Even  the  factory  investigat- 
ing commission  of  New  York,  although  created  by  the  legis- 
lature, did  not  make  an  investigation  that,  in  the  eyes  of  the 
law,  had  binding  force  upon  the  court.  It  indicates,  how- 
ever, the  kind  of  investigations  which  are  the  next  step  in  the 
administration  of  labor  laws.  This  is  the  transformation  of 
the  bureaus  of  labor  statistics  into  permanent  "factory  in- 
vestigating" commissions,  with  the  object,  not  only  of  fur- 
nishing information  to  the  legislature  and  to  the  people,  but 
also  of  furnishing  conclusions  or  findings  of  fact  which  shall 
be  prima  facie  evidence  of  the  truth,  or  even  conclusive  and 
binding  upon  the  court.  This  object  is  sought  to  be  obtained 
through  the  powers  granted  to  an  industrial  commission.1 

(/)  Administrative  Investigations 

One  reason  for  the  breakdown  of  administration  is  the  fail- 
ure to  provide  for  that  executive  discretion  which  is  as  in- 
evitable and  necessary  as  legislative  discretion.  The  Ameri- 
can theory  of  separation  of  branches  of  government  assigns 
to  the  legislature  the  investigation  of  conditions  upon  which 
its  policy  or  principle  is  adopted  and  enacted  into  statute 
law.  With  the  growing  complexity  of  conditions  the  legisla- 
ture has  been  compelled  to  go  into  the  investigation  of  minute 
details,  legislation  on  which,  if  applied  to  every  establishment, 
would  be  unenforceable.  Consequently  the  factory  inspectors 
or  special  police  are  compelled  to  decide  upon  their  own 
executive  investigations  whether  or  not  they  will  enforce  these 
details. 

The  situation  is  similar  to  the  history  of  railroad  regulation. 
In  the  early  "Granger  laws"  of  forty  years  ago  it  was  at- 

1  To  what  extent  this  object  can  be  accomplished  constitutionally  is 
not  here  discussed.  The  court  is  itself  both  an  investigating  body  and 
independent  of  the  legislature.  It  can  evidently  refuse  to  be  bound  by 
a  creature  of  the  legislature.  At  the  same  time  the  ingenuity  of  bill- 
drafters  has  worked  out  methods  of  procedure  which  go  far  toward 
accomplishing  the  object.  These  are  considered  below. 


ADMINISTRATION  467 

tempted  to  enact  a  detailed  actual  schedule  of  each  rate  for 
every  shipment  on  every  road,  and  then  it  was  left  to  the 
individual  shipper  to  bring  suit  in  the  courts  to  enforce  the 
schedule.  The  later  legislatures  of  the  past  twenty  years 
have  omitted  these  technical  details  and  have  contented 
themselves  with  laying  down  general  rules  such  as  that  all 
rates  and  services  shall  be  reasonable  as  between  the  roads 
and  the  shippers.  They  have  then  created  railroad,  or  pub- 
lic utility  commissions,  whose  powers,  in  the  light  of  the  con- 
stitution, are  neither  legislative,  executive,  nor  judicial,  but 
investigational. 

The  problem  which  the  legislature  sets  to  these  commissions 
for  investigation  is  that  of  reasonable  rates  and  services  in  each 
particular  case  where  the  question  arises.  The  principles 
which  enter  into  reasonableness  are  being  continually  laid 
down  by  the  courts  in  long  lines  of  decisions.  Consequently 
the  commission  needs  no  power  of  discretion.  It  must  follow 
the  law — that  is,  the  principles.  It  only  investigates  and 
ascertains  the  facts  which  those  principles  call  for.  The  legis- 
lature meanwhile  has  enacted  that,  when  these  facts  are  ascer- 
tained and  published,  then  the  law  shall  go  into  effect.  The 
fact  is  the  rate  or  service  which  has  been  ascertained  by  the 
investigations  of  the  commission  to  be  reasonable.  It  is  an- 
nounced and  published  as  a  finding  of  fact,  a  "rule,"  or 
" regulation,"  or  "order,"  not  a  statute,  but  haying  the  force 
of  a  statute.  This  is  the  finding  or  conclusion  of  the  commis- 
sion's investigations.  It  is  prima  facie  valid  in  court  and  can- 
not be  overthrown  except  by  overwhelming  evidence  to  the 
contrary. 

Labor  legislation  has  now  reached  an  even  more  volu- 
minous and  technical  stage  than  that  which  applies  to  rail- 
road regulation.  The  legislature  cannot  possibly  consider  all 
the  facts  and  details.  Yet  the  legislature  alone  should  de- 
termine the  policies  and  the  standards,  and  should  go  only 
into  such  details  as  have  general  application.  The  "indus- 
trial commission"  corresponds  to  the  public  utility  or  railroad 
commission.  The  latter  passes  upon  the  opposing  interests 
of  corporations  and  consumers  or  shippers,  epitomized  in  the 
price  bargain.  The  former  passes  upon  the  interests  of  em- 
ployer and  employee,  epitomized  in  the  wage  bargain.  Such 


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470       PRINCIPLES  OF  LABOR  LEGISLATION 

a  commission  investigates  the  facts  and  works  out  the  details 
which  the  legislature  cannot  pass  upon. 

Various  states  have  begun  experiments  in  this  direction. 
The  problem  is  much  more  diversified  than  that  of  establish- 
ing reasonable  rates  and  services.  "Reasonableness"  in 
railroad  regulation  has  a  comparatively  definite  meaning. 
But  reasonableness  in  labor  legislation  is  as  complicated  as 
human  life  and  modern  industry.  A  reasonable  standard  in 
one  field  has  no  meaning  in  another.  There  are  health, 
safety,  and  welfare,  for  example,  which  require  a  variety  of 
standards.  There  is  the  minimum  wage  for  women  and 
minors  which  requires  several  standards.  There  are  hours  of 
labor,  days  and  periods  of  rest,  age  and  sex  of  workers,  with 
varying  standards.  There  are  private  employment  offices, 
workmen's  compensation  for  accidents,  and  many  other 
matters. 

To  meet  these  varying  needs,  and  to  set  these  different 
standards,  the  states  have  established  special  commissions. 
Some  dozen  states  in  1920  had  minimum  wage  commissions, 
to  determine  by  investigation  the  living  wage  that  is  necessary 
for  women  and  minors.  Thirty-two  states  had  workmen's 
compensation  commissions,  to  determine,  under  the  rules 
laid  down  by  the  legislature,  just  how  much  is  the  loss  of  wages 
due  to  an  industrial  accident  for  which  the  employer  shall 
make  compensation. 

Usually  this  new  class  of  commission  has  been  created  in 
addition  to  the  existing  department  of  labor  and  statistics. 
The  existing  departments  continue  to  follow  their  old  line  of 
executive  procedure,  and  consequently  the  states  have  an 
unnecessary  number  of  bureaus  and  departments,  all  dealing 
with  labor  law  by  different  methods,  and  often  overlapping 
and  conflicting.  Thus  the  state  of  Illinois,  as  shown  in  the 
chart  on  page  469  had  in  1915,  before  reorganization  took 
place,  nine  independent  agencies  dealing  with  labor.  In  the 
federal  government  at  Washington,  besides  the  Department 
of  Labor  and  its  bureaus  of  Labor  Statistics,  Immigration,  the 
Women's  Bureau,  and  the  Children's  Bureau,  there  are  the 
Public  Health  Service  of  the  Treasury  Department,  the  Bureau 
of  Mines  of  the  Interior  Department,  the  Bureau  of  Standards 
of  the  Commerce  Department,  the  Interstate  Commerce  Com- 


ADMINISTRATION  47 1 

mission,  and  the  Board  of  Mediation  and  Conciliation,  all  of 
them  dealing  directly  with  problems  of  labor. 

This  multiplication  of  boards  and  commissions  began  to 
attract  serious  attention  when  workmen's  compensation  for 
accidents  was  added  to  the  list  of  laws.  Here  it  is  immedi- 
ately seen  that  accident  prevention  is  as  important  as  accident 
compensation  and  that  the  two  should  go  together.  Hence, 
in  several  states  l  the  compensation  commission  was  given 
authority  to  make  rules  for  safety,  and  there  resulted  two 
departments  with  the  same  purpose,  the  factory  inspection 
department  enforcing  the  legislative  statutes  and  the  com- 
pensation department  enforcing  its  own  rules.  According  to 
the  legislative  method,  there  had  grown  up  a  complicated 
code  of  safety  regulations,  covering,  in  some  states,  the  entire 
field  of  modern  industry.  These  laws  were  a  kind  of  patch- 
work, amended  at  various  sessions  of  the  legislature,  adopted 
after  legislative  hearings  where  the  lobbyists  appeared  for 
or  against,  and  enacted  by  legislatures  whose  members  had 
no  acquaintance  with  the  industries  to  be  regulated.  Such 
laws  were  practically  unenforceable. 

It  was  necessary  to  separate  legislation  from  administra- 
tion. This  has  been  accomplished  by  the  creation  of  the  in- 
dustrial commission  which  combines  compensation  with  ac- 
cident prevention,  relieves  the  legislature  of  details,  and  takes 
the  place  of  the  factory  inspection  department.  The  legis- 
lature now  repeals  its  complicated  statutes  on  safety,  and  con- 
tents itself  with  laying  down  the  general  state  policy  on  the 
subject  and  leaving  the  details  to  the  commission.  The  Wis- 
consin statute  of  1911,  amended  in  1913,  for  example,  merely 
requires  that  every  employer  shall  furnish  such  employment, 
such  a  place  of  employment,  and  such  safety  devices,  safe- 
guards, methods,  and  processes,  as  shall  protect  the  life,  health, 
safety,  comfort,  decency,  and  moral  well-being  of  employees 
to  the  extent  that  the  nature  of  the  employment  or  place  of 
employment  will  reasonably  permit.2  The  law  then  gives  to 


1  California,  Connecticut,  Illinois,  Iowa,  Indiana,  Kentucky,  Mary- 
land,  Massachusetts,  Montana,   Nevada,   New  York,  Utah,  Vermont, 
Washington. 

2  Wisconsin  in  this  respect  goes  further  than  other  states;   Laws  1913, 
Sees.  2394-41,  2394-48. 


472       PRINCIPLES  OF  LABOR  LEGISLATION 

the  commission  authority  to  "investigate,  ascertain,  declare, 
and  prescribe"  what  safety  devices,  safeguards,  or  other 
means  or  methods  of  protection  are  best  adapted  to  render 
the  employees  of  every  employment  and  place  of  employ- 
ment safe  and  to  protect  their  life,  health,  safety,  comfort, 
decency,  and  moral  well-being.1  The  orders  of  the  com- 
mission go  into  effect  thirty  days  after  publication  and  are 
priina  facie  lawful.  By  means  of  this  procedure  the  laws  can 
be  adapted  to  every  detail  of  modern  industry.  They  can 
be  changed  at  any  time  when  a  further  investigation  shows 
new  dangers  or  new  methods  of  prevention.  The  commission 
is  continually  in  session,  but  a  legislature  meets  only  at  stated 
times.  The  commission  is  continually  investigating  while  it  is 
enforcing  the  laws,  but  the  legislature  investigates  only  when 
lobbyists,  petitioners,  or  members  succeed  in  getting  a  hearing. 

Other  states  which  have  adopted  a  similar  form  of  com- 
mission with  power  to  make  rules  and  issue  orders  on  safety 
are  Ohio,  Pennsylvania,  New  York,  and  Colorado.  These 
states  have  also  consolidated  all  of  the  separate  boards  and 
commissions  into  a  single  industrial  commission,2  and  for 
each  branch  of  its  work  the  legislature,  as  in  the  branch  of 
accident  prevention,  also  lays  down  the  general  policy  and 
standard,  leaving  to  the  commission  the  investigations  and 
findings  necessary  to  make  the  law  effective  for  each  employer 
or  employee.  The  following  illustrations,  taken  from  the 
laws  of  Wisconsin,  are  more  or  less  typical  of  laws  in  other 
states : 

For  compensation  in  case  of  accident  the  legislative  stand- 
ard may  require  "reasonable"  medical  and  surgical  care,  65 
per  cent,  of  the  average  weekly  earnings  lost  during  disability, 
and  so  on,  to  be  determined  and  awarded  by  the  commission. 

For  private  employment  offices  the  legislative  standard  may 
prohibit  misleading  statements,  discriminatory  fees,  and  the 
like,  and  then  give  the  commission  power  to  "fix  and  order 
such  reasonable  rules  of  conduct  of  the  business  of  any  em- 


1  Wisconsin,  Laws  1913,  Sec.  2394-52. 

2  Wisconsin,  1911;    Ohio,  1913;    New  York,  1913  and  1915;    Pennsyl- 
vania, 1913;   Colorado,  1915.     Recommended  by  legislative  committee, 
Missouri,    1914.     Similar  bills  introduced   in   New   Jersey,   Maryland, 
Illinois. 


ADMINISTRATION  473 

ployment  agent  as  may  be  necessary  adequately  to  carry 
out"  the  sections  of  the  law. 

For  the  wages  of  women  and  minors  the  legislature  may 
require  employers  to  pay  a  "living  wage,"  or  such  compensa- 
tion "whether  by  time,  piece-work,  or  otherwise,"  as  shall  be 
"sufficient  to  enable  the  employee  receiving  it  to  maintain 
himself  or  herself  under  conditions  consistent  with  his  or  her 
welfare."  The  commission,  then,  must  carry  on  extensive 
investigations,  must  make  various  classifications,  and  de- 
termine for  each  the  amount  of  the  wage  that  the  legisla- 
ture intended. 

For  the  hours  of  labor  for  women  the  legislature  may  pro- 
hibit the  employment  of  any  female  "for  such  period  or 
periods  of  time  during  any  day,  night,  or  week,  as  shall  be 
dangerous  or  prejudicial  to  the  life,  health,  safety,  or  welfare 
of  such  female,"  and  then  authorize  the  commission  to  "in- 
vestigate, ascertain,  determine,  and  fix  such  reasonable  classi- 
fication" and  such  periods  of  time  as  shall  carry  out  the 
purposes  of  the  law. 

For  dangerous  employments  the  legislature  may  provide 
that  "no  employer  shall  employ,  require,  permit,  or  suffer 
any  minor  or  any  female  to  work  in  any  place  of  employment, 
or  at  any  employment,  dangerous  or  prejudicial  to  the  life, 
health,  safety,  or  welfare  of  such  minor  or  female,"  and  then 
authorize  the  commission  to  investigate,  classify,  and  deter- 
mine the  specific  occupations  from  which  women  and  minors 
shall  be  excluded. 

For  the  regulation  of  apprenticeship  the  legislature  may 
require  an  indenture  stipulating  the  hours  for  work,  the  hours 
for  attendance  at  school,  the  Compensation,  etc.,  and  authorize 
the  commission  to  draft,  approve,  and  enforce  the  same. 

For  industrial  and  vocational  education,  the  legislature 
may  require  employers  to  permit  children  to  attend  continua- 
tion schools  a  certain  number  of  hours  each  week  in  the  day- 
time, without  deduction  of  pay,  and  then  authorize  the  com- 
mission to  issue  and  revoke  permits  to  work  based  on  in- 
vestigations showing  what  is  necessary  to  secure  compliance 
with  the  law. 

The  foregoing  illustrations  show  the  distinction  between  a 
legislative  policy  which  sets  up  a  standard,  and  an  adminis- 


474       PRINCIPLES  OF  LABOR  LEGISLATION 

trative  investigation  which  applies  the  standard  to  each  case 
or  each  class  of  cases.  The  principles  of  standardization  have 
two  aspects,  which  may  be  designated  as  diversity  and  gener- 
ality. There  is  a  wide  diversity  of  standards,  simply  because 
there  is  a  wide  diversity  in  the  subject-matter  of  legisla- 
tion, all  the  way  from  safety  and  health  to  wages  and  edu- 
cation. Diversity  requires  specialization  on  the  part  of 
investigators,  and  consequently  the  staff  of  a  commission 
requires  physicians  and  hygienists  for  some  of  the  stand- 
ards, accountants  and  actuaries  for  others,  engineers  and  me- 
chanics, economists  and  statisticians,  business  men  and  work- 
ingmen,  according  to  the  peculiarities  of  each  subject  and  the 
special  or  general  knowledge  required. 

Much  more  difficult  and  debatable  is  the  question  of  gen- 
erality of  the  standards.  The  most  general  standard  is 
"reasonableness."  Reasonableness,  in  law,  means  simply 
that  all  of  the  facts  must  be  investigated  and  due  weight  must 
be  given  to  each.  If  the  legislature  merely  required  that 
wages  or  hours  should  be  "reasonable,"  then  the  commission 
would  have  almost  as  wide  discretion  as  the  legislature  itself. 
If,  at  the  other  extreme,  the  legislature  prescribes  minute  de- 
tails for  every  act  of  the  commission,  then  the  investigations 
are  reduced  to  those  executive  investigations  already  de- 
scribed as  the  means  of  securing  evidence  of  violations  for 
prosecution.  Between  these  two  extremes  of  generality  and 
particularization  there  is  room  for  wide  differences  of  opinion 
and  policy.  In  some  subjects  the  legislative  standards  must 
necessarily  be  much  more  general  than  in  others.  A  "living 
wage"  can  scarcely  be  ascertained  as  precisely  as  the  age  of 
a  child.  The  number  of  hours  of  continuous  work  that  are 
injurious  to  the  health  of  women  cannot  be  as  accurately  de- 
termined as  the  dangerous  character  of  a  set  screw  or  a  buzz- 
saw.  Only  this  is  to  be  noticed:  If  the  legislature  goes  too 
far  in  specifying  details  of  each  standard  it  forces  widely  dif- 
ferent factories,  shops,  ages,  conditions,  into  the  same  mold, 
and  assumes  to  have  an  intricate  knowledge  of  conditions  and 
a  foresight  of  changing  conditions  which  its  brief  and  crowded 
sessions  do  not  permit.  Consequently,  the  law  is  unenforce- 
able. On  the  other  hand,  the  commission  is  continuously  in 
session.  It  is  not  hurried.  It  can  adopt  a  general  rule  or  can 


ADMINISTRATION  475 

go  into  the  details  as  far  as  it  has  information.  It  has  its 
staff  of  investigators  and  inspectors  who  are  continually  fur- 
nishing new  information,  and  it  can  change  its  rules  as  needed. 
It  has  its  representatives  of  employers  and  employees  who 
testify  to  the  actual  conditions  that  need  remedying  and  the 
actual  workings  of  the  rules  already  adopted.  It  can  make 
classifications  and  issue  different  rules  for  different  conditions, 
and  can  change  its  rules  when  the  conditions  change  or  when 
it  discovers  new  and  more  effective  remedies. 

The  principal  value  and  importance  of  administrative  in- 
vestigations is  their  conclusiveness.  No  matter  how  indef- 
inite or  general  is  the  legislative  standard,  it  must  be  reduced 
to  a  definite  rule  upon  which  prosecutions  and  penalties  can 
be  based.  A  decision  must  be  reached  and  enforced.  We 
have  seen  that  the  investigations  of  private  associations,  of 
experts,  of  attorneys  on  either  side  of  a  case,  or  even  of  legis- 
lative committees  and  temporary  commissions,  are  not  con- 
clusive. If  the  court  accepts  these  investigations  it  does  so 
as  facts  of  "common  knowledge"  of  which  the  judge  takes 
"judicial  notice"  without  proof.  And,  in  so  doing,  every 
reasonable  doubt  is  resolved  against  them  and  in  favor  of  the 
alleged  violator.  To  be  conclusive,  an  investigation  must  be 
clinched  by  proof,  and  the  procedure  by  which  this  is  accom- 
plished is  prescribed  by  the  courts  in  their  decisions  on  due 
process  of  law.  An  administrative  investigation  must  usually 
follow  this  procedure:  First,  the  inspectors  and  investi- 
gators assemble  their  facts.  The  commission  then  draws 
its  tentative  conclusions  and  gives  notice  officially  of  a  pub- 
lic hearing  for  all  persons  whose  interests  will  be  affected  by 
the  rule.  Opportunity  to  be  heard  is  essential  to  due  proc- 
ess of  law.  After  the  public  hearing  the  commission  drafts 
its  rules  in  final  form,  and,  when  they  are  officially  published, 
they  go  into  effect  on  such  date  as  the  legislature  has  previously 
designated.  But,  even  with  this  procedure,  the  rules  and 
orders  of  the  commission  are  not  legally  conclusive  and  bind- 
ing on  the  court.  If  an  employer  violates  them  and  then 
attacks  them  in  court,  he  does  so  on  the  ground  that  they 
are  unreasonable  in  some  respect,  such  as  class  legislation  or 
discrimination,  instead  of  reasonable  classification.  If_£ii£y 
are  unreasonable..-  then  they  are  unconstitutional.  The 


476       PRINCIPLES  OF  LABOR  LEGISLATION 

court  may  decide  to  reinvestigate  the  facts  on  its  own  ac- 
count. It  is  an  independent  branch  of  government  and  can- 
not be  deprived  of  its  powers  by  the  legislature.  But  the 
legislature  may  prescribe  the  court's  procedure  and  may  give 
to  the  rules  of  the  commission,  when  based  on  full  investiga- 
tion, a  preferential  position  as  proof.  It  makes  them  prima 
facie  lawful,  valid,  and  reasonable,  so  that  the  burden  of  proof 
is  on  the  employer  to  prove  affirmatively  that  they  are  un- 
reasonable. It  may  require  the  court  to  send  the  case  back 
to  the  commission  for  reinvestigation  if  the  employer  attempts 
to  bring  to  the  court  any  evidence  that  he  had  withheld  from 
the  commission.  The  commission  may  then,  if  it  so  decides, 
change  its  orders  to  cover  the  omitted  facts.  In  these  and 
various  other  ways  suggested  by  the  ingenuity  of  bill-drafters, 
the  investigations,  findings,  and  orders  of  administrative  com- 
missions are  given,  not  actually  binding  and  conclusive  weight 
on  the  courts,  but  such  a  high  degree  of  conclusiveness  that  for 
ordinary,  practical  purposes  they  are  final.1 

In  this  respect,  administrative  investigations  are  a  necessary 
aid  to  the  court  and  serve  to  place  in  evidence  the  industrial 
facts  which  otherwise  would  not  receive  due  weight.  The 
court  is  intrusted  with  the  final  authority  to  apply  the  prin- 
ciples of  justice  and  the  constitution  to  the  acts  of  legislatures 
and  administrative  commissions.  It  decides  whether  or  not 
the  act  accomplishes  a  public  purpose  and  affords  equal  pro- 
tection of  the  laws.  These  are  questions  of  fact  in  each  par- 
ticular case.  A  question  of  fact  resolves  itself  into  a  question 
of  classification.  Does  the  particular  act  apply  to  some  people 
and  not  to  others  who  are  similar?  Or  does  it  enforce  the 
same  arbitrary  rule  on  a  variety  of  persons  who  are  not  really 
similar?  If  so,  it  is  discriminatory  and  unequal  in  that  it  is 
based  on  a  false  classification.  Does  the  act  benefit  a  class  of 
people  who  do  not  need  the  aid  of  the  police  power  and  whose 
private  benefit  is  not  a  public  benefit?  Does  the  act  impose 
burdens  on  some  that  are  so  far  in  excess  of  the  benefits  to 


1  For  different  methods  of  securing  different  degrees  of  conclusiveness, 
consult  the  minimum  wage  laws  of  various  states,  the  industrial  com- 
mission laws  already  referred  to  and  the  laws  creating  state  public  utility 
commissions,  the  Interstate  Commerce  Commission  and  the  Federal 
Trade  Commission.  See  also  "Penalties  and  Prosecutions,"  p.  489. 


ADMINISTRATION  477 

others  that  they  are  unreasonable? l  These  are  some  of  the 
questions  of  classification  asked  by  the  courts,  and,  evidently, 
they  require  accurate  investigation  and  well-established  facts 
in  order  to  avoid  the  charge  of  false  classification.  Speaking 
of  the  need  of  administrative  investigations  that  shall  approach 
the  standard  of  conclusiveness  in  establishing  the  facts  for 
classification.  Professor  Ernst  Freund  has  recently  said: 2 

The  equal  protection  clause  of  the  fourteenth  amendment  will,  of 
course,  be  thought  of  at  once  as  a  possible  weapon  of  defense  against 
unwarranted  class  legislation.  However,  a  study  of  the  operation 
of  this  clause  in  the  past  must  produce  considerable  skepticism  as 
to  its  availability  in  the  future.  There  are  some  states  in  which  it 
plays  a  considerable  part  in  the  judicial  overthrow  of  statutes,  and 
Illinois  is  conspicuous  in  this  respect.  In  that  state,  however,  the 
application  of  the  rule  of  non-discrimination  has  been  so  capricious 
that  the  impossibility  of  foretelling  what  kind  of  classification  for 
purposes  of  welfare  legislation  will  stand  the  test  of  judicial  scrutiny 
has  become  a  notorious  grievance.  The  Supreme  Court  of  the 
United  States,  on  the  other  hand,  having  applied  the  rule  in  one  case 
(that  of  the  antitrust  act  of  Illinois,  Connolly  v.  Union  Sewer  Pipe 
Co.,  184  U.  S.  540,  46  L.  ed.  679,  22  Sup.  Ct.  431)  with  surprising 
strictness,  has  since  practically  taken  the  position  that  a  legislative 
classification  will  be  sustained  if  there  is  any  reasonable  possibility 
of  its  justification,  and  in  the  last  ten  years  no  measure  has  been 
declared  invalid  by  reason  of  undue  partiality  or  discrimination.  No 
jurisdiction  has  developed  any  constructive  theory  of  classification 
which  might  serve  for  guidance  or  protection. 

The  reason  for  this  failure  is  tolerably  clear.  The  legitimacy  or 
illegitimacy  of  classification  can  be  established  only  on  the  basis  of 
social  or  economic  data  of  great  complexity.  It  presents  a  question 
of  fact  for  the  examination  of  which  the  courts  are  not  equipped.  It 
is  always  a  condition  as  well  as  a  theory  which  underlies  public  welfare 
legislation;  and  while  the  courts  can  deal  adequately  with  the  theory, 
the  condition  must  elude  them  unless  it  is  notorious,  and  at  present 
the  causes  of  social  or  economic  grievances  are  rarely  notorious. 

1  In  upholding  the  law  prohibiting  night  work  for  women,  the  New 
York  court  said:    "The  only  chance  for  debate  would  be  whether  the 
prohibition  is  so  wide  and  so  universal  that  it  can  be  said  it  is  so  out  of 
proportion  to  the  benefits  sought  that  it  is  burdensome  and  unreasonable 
to  a  degree  which  transcends  the  discretion  of  the  legislature."     People 
v.  Charles  Schweinler  Press,  214  N.  Y.  395,  108  N.  E.  639  (1915). 

2  "Problems  of  the  Police  Power,"  Case  and  Comment,  Vol.  XX,  1913, 
P-  303- 


478       PRINCIPLES  OF  LABOR  LEGISLATION 

Conceivably  this  defect  of  judicial  action  might  be  overcome  by 
new  powers  or  facilities  for  independent  inquiry  placed  at  the  disposal 
of  the  courts;  but  it  is  not  likely  that  these  will  be  resorted  to  if 
experience  shows  that  the  same  function  can  be  better  performed  by 
other  organs.  And  the  remedy  appears  to  be  coming  from  another 
direction.  In  an  increasing  number  of  cases  important  legislation 
is  being  prepared  by  commissions  of  inquiry  composed  of  experts 
and  having  adequate  resources  for  investigation  at  their  command. 
The  conclusions  of  such  a  commission  will  carry  weight  which  un- 
fortunately has  long  ceased  to  attach  to  the  mere  fact  of  the  enact- 
ment of  a  statute.  The  courts  may  of  course  still  reject  an  act  thus 
recommended;  but  the  case  of  the  workmen's  compensation  law  of 
New  York  shows  not  merely  with  what  unfeigned  respect  the  work 
of  such  a  commission  will  be  commented  on  by  a  court,  but  also  that 
public  opinion  will  not  be  inclined  to  treat  a  decision  adverse  to  its 
conclusions  as  final.  A  proper  development  of  scientific  methods  of 
legislation  will  reduce  the  conflict  between  legislation  and  adjudica- 
tion to  a  minimum. 

A  similar  result  may  be  expected  from  the  growing  legislative  prac- 
tice of  delegating  in  appropriate  cases  powers  of  quasi-legislative  or 
quasi- judicial  determination  to  administrative  commissions.  It  is 
now  generally  conceded  that  no  other  form  of  railroad  control  is 
adequate  or  satisfactory,  and  the  superseding  of  the  Massachusetts 
advisory  railroad  commission — for  many  years  the  model  of  its  type 
— by  the  mandatory  commission  act  of  the  present  year,  marks  the 
final  victory  of  this  phase  of  railroad  legislation.  Again,  the  estab- 
lishment of  an  industrial  board  in  New  York,  likewise  in  the  present 
year,  and  in  pursuance  of  the  recommendations  of  a  notable  com- 
mission, marks  the  adhesion  of  the  leading  state  of  the  union  to  a 
similar  method  of  labor  legislation,  first  introduced  in  Wisconsin. 
And  it  is  noteworthy  that  of  the  minimum  wage  laws  enacted  during 
the  year  only  one  does  not  pursue  the  commission  plan. 

In  proper  hands  and  under  proper  safeguards  the  system  of  leaving 
to  an  administrative  commission  the  development  of  principles  laid 
down  by  the  legislature  in  broad  terms  carries  with  it  guaranties  of 
reasonableness  and  impartiality  which  a  political  body  can  never 
afford.  The  system  is  based  upon  the  theory  that  when  once  an 
agreement  lias  been  reached  regarding  the  principle  of  a  measure, 
the  development  of  that  principle  into  detailed  rules  is  a  process 
determined  by  the  logic  of  ascertained  facts.  It  thus  represents  a 
separation  of  that  which  is  matter  of  choice,  or  expediency,  viz.,  the 
adoption  of  a  policy,  from  that  which  is  matter  of  argument  and 
judgment;  namely,  the  application  of  the  policy  to  particular  cir- 
cumstances. Viewed  in  this  light  the  delegation  constitutes  not  a 


ADMINISTRATION  479 

violation,  but  a  more  perfect  development  of  the  principle  of  the 
separation  of  powers,  and  this  should  be  borne  in  mind  when  the 
system  is  attacked  as  an  unconstitutional  delegation  of  the  legisla- 
tive power.1  In  any  event  some  such  method  of  dealing  with 
complex  social  and  economic  problems  seems  an  almost  indispensable 
corrective  of  the  possible  abuse  of  a  police  power  extending  to  every 
interest  that  can  be  reached  or  affected  by  governmental  action. 

(2)  Representation  oj  Interests 

From  what  precedes  it  will  be  seen  that  the  highest  place 
in  the  American  scheme  of  constitutional  government  is  that 
occupied  by  investigation.  But  the  investigations  required 
are  not  merely  those  of  experts,  as  seems  often  to  be  assumed 
when  the  term  "scientific "  legislation  is  used.  The  investiga- 
tions of  experts,  such  as  physicians,  engineers,  economists, 
statisticians,  and  lawyers,  are  likely  to  end  in  conclusions 
that  may  be  ideally  perfect  from  a  technical  point  of  view, 
but  not  reasonable  from  the  constitutional  point  of  view. 
They  do  not  include  all  of  the  facts.  The  latter  can  be  ascer- 
tained only  through  adding  the  experience  and  testimony  of 
employers  and  employees — those  who  are  daily  in  contact 
with  the  facts,  and  whose  common  knowledge  corrects  the 
narrow  knowledge  of  specialists.  The  public  hearings  re- 
quired by  due  process  of  law  are  the  legal  and  constituted 
devices  contrived  to  make  sure  that  all  sides  will  be  heard. 
But  these  public  hearings  are  formal,  disputatious,  indis- 
criminate, and  indecisive.  They  do  not  offer  the  common 
man  an  equal  opportunity  with  the  lawyer  or  expert  to  get 
his  common  experience  written  into  the  conclusions.  The 
commission  is  not  bound  in  any  direct  way  by  what  was 
offered  at  the  public  hearing.  The  latter  becomes  a  formality 
and  a  mere  technical  compliance  with  the  constitutional  re- 
quirement of  "due  process."  The  officials  withdraw  and 
formulate  their  own  rules  as  they  please. 

This  is  the  essence  of  bureaucracy.     It  is  often  charged 

1  The  laws  which  were  invalidated  by  the  decisions  cited  in  "One  Day 
of  Rest  in  Seven,"  p.  281,  and  "Lighting,  Heating,  and  Ventilation,"  p. 
363,  were  not  of  this  class.  They  made  no  provision  for  investigation  and 
ascertaining  of  facts,  but  merely  stated  that  certain  action  might  be  takrn 
by  the  commissioner  of  labor  "in  his  discretion"  or  if  "it  appears"  to 
him  that  certain  results  could  be  obtained. 


48o       PRINCIPLES  OF  LABOR  LEGISLATION 

that  the  efficient  methods  of  administration  employed  in  lead- 
ing European  countries  are  not  adapted  to  American  de- 
mocracy because  they  are  "bureaucratic."  But  American 
officials,  as  a  rule,  are  more  truly  bureaucratic  than  those  of 
Europe.  It  is  not  rotation  in  office  that  cures  bureaucracy. 
The  most  democratic  of  Americans  become  bureaucrats  as 
soon  as  installed  in  office.  Bureaucracy  is  just  the  ordinary 
human  instinct  for  exclusive  possession  of  power.  Its  es- 
sence consists  in  imposing  its  will  upon  others  without  really 
consulting  them.  Whether  the  office-holder  is  an  expert,  a 
democrat,  or  a  politician,  makes  little  difference.  It  seems 
easier  to  reach  a  decision  in  one's  mind  and  then  to  force 
others  to  obey  than  to  submit  to  the  criticism  or  to  profit  by 
the  advice  of  those  who  are  not  officials. 

The  situation  is  different  in  a  legislature  where  each  mem- 
ber is  compelled  to  listen  to  his  opponents  as  well  as  his 
partisans,  and  to  modify  his  individual  opinion  in  order  to 
get  a  majority  opinion.  A  similar  arrangement  is  called  for 
in  the  administration  of  labor  law.  Here  the  conflict  of  in- 
terest is  often  more  intense  than  it  is  in  a  legislature,  rising 
at  times  to  the  pitch  of  incipient  civil  war.  It  is  not  sur- 
prising, therefore,  that,  in  many  states  and  countries,  the 
officials  who  administer  labor  law  are  required  to  submit  their 
investigations  and  proposals,  before  action,  to  the  represen- 
tatives of  employers  and  employees.  These  representatives 
owe  allegiance,  not  to  the  government  officials,  but  to  the 
interests  which  select  them.  Wherever  these  interests  are 
organized  into  employers'  associations  and  trade  unions, 
there  the  representatives  may  be  elected  or  designated  and 
recalled  in  some  way  by  the  organizations.  In  some  cases 
these  representatives  have  an  actual  veto  on  the  proposals 
of  the  officials ;  in  others  they  are  more  or  less  advisory,  but 
entitled  to  participate  in  the  official  deliberations.  In 
France,  Belgium,  Italy,  Germany,  and  Austria  a  large  part 
of  the  labor  law  is  administered  in  this  way.  There  may  be 
a  national  superior  council  of  labor,  as  in  Belgium,  France, 
Switzerland,  Italy,  Norway,  and  other  countries,  nominated 
in  such  a  way  as  to  represent  employers,  unions,  and  the 
general  public.  Then  there  are  inferior  councils  in  districts 
or  cities.  These  councils  take  part  in  drafting  legislation, 


ADMINISTRATION  481 

formulating  decrees  and  administrative  rules,  conducting  in- 
vestigations, and  supervising  the  collection  of  statistics  on  all 
subjects  connected  with  labor.  The  administration  of  public 
employment  offices  is  more  and  more  conducted  by  joint  com- 
mittees of  employers  and  employees,  going  so  far  in  Denmark 
as  to  include  the  joint  selection  of  subordinate  officials.  The 
Industrial  Council  of  Great  Britain  is  a  large  representative 
body  of  employers  and  trade  unionists  selected  to  assist  the 
ministry  of  labor  in  matters  of  mediation  and  conciliation.  The 
industrial  courts  of  France,  Germany,  and  other  countries, 
composed  of  employers  and  employees,  take  the  place  of  or- 
dinary minor  courts  of  law  in  disputes,  whether  individual  or 
collective,  growing  out  of  wage  bargains.  In  Germany  and 
Austria  the  administration  of  social  insurance  is  entrusted  in 
various  ways  to  organizations  of  employers  and  employees. 
A  complete  list  of  these  arrangements,  adopted  during  the 
past  twenty  years,  would  show  that  every  branch  of  labor 

legislation   is   Coming   t^   bQ    ^Hmi'nigfprp.r!    on    tViP    pn'npjpfa   of 
of 


In  American  states  the  substitution  of  administrative  rules 
for  legislative  details  makes  it  possible  to  adopt  similar  repre- 
sentation of  interests.  If  the  legislature  lays  down  the  gen- 
eral rule  that  every  place  of  employment  shall  be  made 
"safe"  it  naturally  follows  that  those  who  can  best  pass  upon 
the  safety  devices  and  processes,  as  to  whether  they  are  prac- 
tical, in  addition  to  being  scientific,  are  the  employers  and  em- 
ployees who  must  install  and  use  them.  In  the  four  or  five 
states  which  have  adopted  the  principle  of  administrative 
investigations  these  joint  committees  actually  draw  up  the 
rules  for  safety  and  health,  assisted  by  the  staff  of  the  commis- 
sion and  the  various  classes  of  experts  who  may  be  called  in. 
In  Wisconsin,  for  example,  there  is  a  general  committee  named 
by  the  Merchants'  and  Manufacturers'  Association  and  the 
state  Federation  of  Labor.  Under  this  general  committee  are 
subcommittees  on  boiler  rules,  elevator  rules,  shop  lighting, 
ventilation,  wood  working,  and  other  specialties.  These  com- 
mittees visit  the  factories,  try  out  all  devices  by  extensive 
tests,  and,  when  they  have  finally  agreed  upon  a  recommenda- 
tion, it  is  adopted  by  the  commission  and  issued  as  an  order 

without  change. 
31 


482       PRINCIPLES  OF  LABOR  LEGISLATION 

Thus  there  are  two  kinds  of  publicity,  the  public  hearing 
usually  required  by  the  formalities  of  due  process  of  law,  and 
the  representative  publicity  participated  in  by  the  chosen  agents 
of  the  interests.  The  latter  is  the  more  effective,  because  it 
is  carried  on  with  experiments  and  tests,  over  a  period  of  time, 
by  those  whose  personal  interests  and  knowledge  are  keen.  It 
is  a  process  of  cooperative  investigation.  And  when  an  in- 
vestigation of  this  kind  is  completed  it  fulfils  all  the  constitu- 
tional requirements  of  "reasonableness."  It  includes  all  of 
the  facts,  because  it  is  conducted  by  those  whose  interests  are 
opposite  on  some  points  and  common  in  others.  It  gives  "due 
weight"  to  the  interests  of  employer  and  employee,  and  thus 
conforms  to  the  "equal  protection  of  the  laws."  Furthermore, 
a  rule  thus  agreed  upon  has  the  backing  of  the  representative 
employers  of  the  state,  and  their  approval  carries  such  weight 
in  court  that  other  employers,  who  would  ordinarily  violate  the 
laws-enacted  by  a  legislature,  do  not  violate  the  administra- 
tive rules  approved  in  joint  conference. 

What  is  true  of  safety  is  also  true  in  a  greater  or  less  degree 
of  all  branches  of  labor  legislation  where  administrative  rules 
can  be  substituted  for  legislative  statutes.  As  we  have  seen, 
this  is  possible  in  minimum  wage  laws,  hours  of  labor,  excluded 
employments,  public  and  private  employment  offices,  and 
workmen's  compensation.  In  some  of  these  branches  the  op- 
position of  interests  is  less  reconcilable  than  it  is  in  others,  and 
there  the  commission  itself  must  exercise  greater  authority. 
For  the  representative  committees  are,  after  all,  only  advisory. 
They  have  no  legal  power,  no  veto,  on  the  commission.  The 
rules  and  orders  that  carry  penalties  are  the  commission's 
rules  and  orders,  and  not  those  of  the  representatives.  But, 
while  the  committees  are  advisory,  the  legislature  may  make 
it  mandatory  upon  the  commission  to  consult  them.  In  view 
of  the  fact  that  the  bureaucratic  impulses  of  officials  stand  in 
the  way  of  such  consultation  where  it  is  optional,  this  man- 
datory provision  is  necessary.  The  industrial  commission  law 
of  New  York,  enacted  in  1915,  has  taken  this  further  step  in 
the  recognition  of  representatives.  It  requires  the  commission 
to  submit  its  proposals  and  investigations  to  an  "industrial 
council"  of  representative  employers  and  employees,  for  their 
advice.  Minimum  wage  laws  are  similar  and  require  investi- 


ADMINISTRATION  483 

gation  by  wage  boards  composed  of  employers  and  employees 
of  the  district. 

The  economic  principle  underlying  this  representation  of  in- 
terests is  the  well-known  fact  that  competition  tends  to  drag 
down  all  employers  to  the  level  of  the  worst.  But  labor  legis- 
lation is  designed  to  bring  the  worst  employers  up  to  the  level 
of  the  best.  Yet  it  cannot  be  expected  that  legislation  will 
ever  be  able  fully  to  accomplish  this.  Individuals  here,  as 
elsewhere,  will  always  be  ahead  of  what  the  state  can  do. 
With  each  rise  in  the  level  of  standards  required  by  the  legis- 
lature, individual  employers  will  be  free  to  rise  still  higher. 
Here  is  exactly  where  the  field  of  administration  lies.  An 
industrial  commission,  with  representation  of  interests,  can 
do  what  the  legislature  cannot  do.  If  it  is  given  leeway  in 
drafting  rules  and  regulations,  it  can  call  upon  the  more  ad- 
vanced employers  and  the  representatives  of  labor  to  assist 
in  setting  higher  standards,  and  it  can  then  enforce  these 
standards  on  the  more  backward  ones.  It  can  bring  out  the 
divisions  that  already  exist  among  employers,  and,  instead  of 
permitting  the  worst  to  set  the  standards  for  the  best,  it  can 
assist  the  best  in  setting  standards  for  the  worst.  The  legis- 
lative method  treats  all  employers  alike  as  criminals,  and 
forces  all  to  'combine  and  to  support  the  same  lobbyists,  in 
order  to  resist  what  they  consider  destructive  laws.  The  ad- 
ministrative method  permits  the  leading  representatives  of 
employers  to  consult  with  the  representatives  of  labor  and 
with  the  commissioners  who  represent  the  state,  regarding  all 
of  the  details  necessary  to  carry  the  law  into  effect  and  to  ad- 
just it  to  all  conditions.  The  method  is  practically  that  of  the 
voluntary  joint  conference  of  collective  bargaining  in  which 
a  trade  agreement  between  an  employers'  association  and  a 
union  is  drawn  up.  Neither  the  union,  the  employer,  nor  the 
politician  dominates.  The  decisions  are  not  hastily  adopted 
by  a  majority  vote,  but  are  given  sufficient  consideration,  ac- 
companied by  thorough  investigation  and  complete  publicity. 
The  process  is  educational  and  cooperative,  rather  than  argu- 
mentative and  coercive.  It  is  riot  the  struggle  of  two  lobbies 
to  win  over  a  committee  or  a  legislature,  but  it  is  a  substitute 
for  the  lobbies,  sitting  in  continuous  conference,  under  state 
supervision,  working  out  the  rules  and  regulations  which 


484       PRINCIPLES  OF  LABOR  LEGISLATION 

give  effect  to  the  legislature's  standards  of  industrial  wel- 
fare. 

This  representation  of  organized  interests  in  the  adminis- 
tration of  law  is  peculiarly  fitted  to  bridge  the  gaps  caused  by 
our  constitutional  separation  of  the  branches  of  government. 
In  other  parliamentary  countries  the  heads  of  executive  de- 
partments, such  as  cabinet  officers  and  ministers  of  labor,  are 
also  members  of  the  legislature.  Any  member  of  the  legisla- 
ture, or  the  opposition  parties  in  the  legislature,  can  call  them 
to  account,  on  the  floor  of  the  house  and  before  the  audience 
of  the  people,  for  their  methods  of  administration.  A  hostile 
vote  can  dismiss  them  from  office.  Thus  their  acts  are 
scrutinized  and  their  responsibility  is  enforced. 

But  in  the  American  system  the  "minister  of  labor"  is  the 
"commissioner  of  labor,"  the  "state  factory  inspector,"  or  the 
"Secretary  of  Labor."  In  theory  he  is  responsible,  but  in 
practice  the  machinery  is  lacking  to  enforce  responsibility. 
Those  who  are  most  concerned  in  holding  him  responsible  are 
not  "the  public"  at  large,  but  the  employers  and  employees 
who  must  obey  the  laws  which  he  enforces.  At  the  same  time 
they  have  no  voice,  no  representation,  that  is  theirs  as  a  matter 
of  right  and  law.  They  can  only  exert  themselves  through  the 
devious  ways  of  "politics"  and  lobbyists. 

For  this  reason,  in  American  states  and  the  federal  govern- 
ment, it  has  been  necessary  to  create  "commissions,"  where 
in  foreign  countries  the  same  duties  would  be  entrusted  to 
political  departments.  The  Interstate  Commerce  Com- 
mission, the  Federal  Trade  Commission,  the  Federal  Reserve 
Board,  the  public  utility  commissions  of  the  states,  are  fourth 
branches  of  government,  separated  from  the  other  branches 
and  performing  duties  which  in  other  countries  are  under  a 
cabinet  officer,  such  as  the  chancellor  of  the  exchequer,  or  the 
minister  of  commerce  and  industry,  who  has  a  seat  in  parlia- 
ment. A  leading  object,  in  all  of  these  American  cases,  is  to 
take  the  question  "out  of  politics " — that  is,  out  of  the  partisan 
contests  that  go  on  in  the  legislature.  This  would  probably 
not  be  necessary  if  the  chief  executive  officer  having  them  in 
charge  were  a  member  of  the  legislature,  as  in  parliamentary 
countries,  liable  to  be  dismissed  if  he  and  his  colleagues  fail 
^  to  get  a  majority  vote  in  the  legislature. 


ADMINISTRATION  485 

The  situation  is  even  more  serious  in  dealing  with  labor 
legislation.  Here,  the  conflict  of  classes  is  more  menacing 
to  peace  than  it  is  in  matters  of  railroads,  trusts,  and  banks. 
The  labor  question,  of  course,  cannot  and  should  not  be  taken 
out  of  the  legislature.  It  is  always  a  question  of  politics— 
that  is,  of  public  policy — as  to  what  shall  be  the  standards 
and  what  laws  shall  be  enacted.  But  the  industrial  commission 
takes  out  of  the  legislature  the  intricate  details  of  investigation, 
after  the  standards  have  been  enacted  into  law.  And,  most 
important  of  all,  it  permits  the  creation  of  an  inferior  industrial 
legislature,  composed  of  the  real  representatives  and  leaders 
of  both  interests,  continually  in  session  under  state  supervision, 
and  working  upon  those  details  of  administration  which,  after 
all,  are  the  actual  substance  of  such  legislation  as  is  enforced. 

Of  course,  various  problems  arise  in  the  constitution  of 
these  representative  councils.  One  is  the  representation  of 
unorganized  workers.  As  yet,  no  device  has  been  discovered 
by  which  they  can  be  directly  represented.  It  may  be  said, 
perhaps,  that  they  are  partly  represented  by  employers  who 
need  them  to  offset  the  unions,  partly  by  the  unions,  many  of 
whose  demands  would  benefit  both  organized  and  unorganized 
labor,  and  partly  by  the  commission  which  represents  the 
public. 

Another  problem  is  the  compensation  and  expenses  of  the 
representatives.  If  they  are  compensated  by  the  state  their 
allegiance  to  their  organizations  is  weakened.  One  of  the  dis- 
asters of  trade  unionism  is  the  ambition  of  its  own  members 
for  political  jobs  and  salaries.  To  be  truly  representative,  the 
representative  must  depend  on  his  'organization  for  his  com- 
pensation and  expenses.  It  follows,  in  the  case  of  unions, 
if  the  state  does  not  pay  salaries  or  expenses,  that  the  in- 
dividuals named  on  the  representative  councils  are  usually 
the  salaried  officials  and  business  agents  of  the  union.  These 
are  their  representatives  already  chosen  for  the  purpose  of 
dealing  with  employers,  and  it  is  but  a  short  step  from  dealing 
with  employers  in  private  bargain^  to_  dealing  with  them  on 
governmental  bodies.  In  all  cases  it  is  found  by  experience 
that  the  representatives  on  either  side  should  not  be  lawyers. 
The  object  is  not  to  win  a  case  in  court,  but  to  reach  an  agree- 
ment by  conference.  Neither  should  the  employers'  repre- 


486       PRINCIPLES  OF  LABOR  LEGISLATION 

sentatives  come  from  the  financial  or  commercial  side  of  the 
business.  They  should  be  the  men  in  charge  of  production, 
who  have  grown  up  in  the  industry  and  know  the  labor  con- 
ditions. The  amount  of  time  required  is  not  so  great  as  to 
prevent  attendance.  The  investigations  are  made  by  a  staff 
continuously  employed  and  are  then  laid  before  the  representa- 
tives, and  their  familiarity  with  the  business  enables  them 
immediately  to  pick  out  the  weak  spots.  These  are  referred 
back  for  further  investigation,  so  that  the  various  brief  meet- 
ings of  the  representative  council  are  enough  to  accomplish 
the  purpose.  Such  investigations  are  not  hastily  made,  as 
they  are  in  the  case  of  legislatures  in  session.  The  conferences 
are  not  required  to  act  within  a  limited  time,  and  if  they  can- 
not cover  the  whole  ground  they  cover  a  part  of  it  and  wait 
for  future  investigations  to  make  the  necessary  amendments. 
The  representatives  do  not  need  to  be  officials  with  govern- 
mental powers  to  enter  factories,  but  they  must  have  a  staff 
in  which  they  have  confidence.  This  is  the  problem  of  civil 
service. 

(j)  Civil  Service 

We  have  already  seen  how  the  administration  of  labor  laws 
has  required  the  building  up  of  a  special  police.  This  was 
an  advance  over  the  enforcement  of  law  by  general  officers, 
but  it  brought  many  difficulties.  It  created  salaried  positions, 
which  political  parties  seized  upon  for  political  purposes,  and 
a  mere  ostensible  enforcement  of  the  law.  Even  more  serious 
than  party  politics  was  the  struggle  of  employers  and  em- 
ployees to  get  control  of  these  offices.  The  trade  unions 
claimed  the  right  of  appointment,  because  largely  through 
their  efforts  the  positions  had  been  created,  and  because  they 
considered  that  the  laws  would  not  be  enforced  except  by 
friendly  .  inspectors.  The  result  has  been  that  >  in  many 
states,  the  unions  themselves  have  been  split  by  internal 
politics  over  the  personal  candidacies  of  their  members  for 
the  positions.  The  unions  also  have  been  compelled  to  make 
alliances  or  compromises  with  the  political  parties,  and  thus 
has  resulted  the  " labor  politician" — selected,  not  to  enforce 
the  law  effectively,  but  to  get  the  "labor  vote."  On  the  other 
hand,  the  employers  also  make  their  political  alliances,  an 


I 


ADMINISTRATION  487 

then  the  selection  of  factory  inspectors  is  often  designedly  made 
to  prevent  the  enforcement  of  the  laws.  Thus  both  political 
and  industrial  partisanship  have  joined,  either  to  defeat  alto- 
gether the  factory  laws  through  hostile  inspectors,  or  to  make 
them  ineffective  through  political  trade  union  inspectors. 

The  next  step  is  the  effort,  made  in  a  few  states  and  by  the 
federal  government,  to  adopt  civil  service  examinations,  ten- 
ure of  office  on  good  behavior,  and  promotion  in  the  service, 
as  a  substitute  for  political  appointments.  These  civil  ser- 
vice laws,  beginning  in  the  decade  of  the  'eighties,  were  de- 
signed primarily  to  prevent  the  use  of  public  offices  as  a  part 
of  the  political  "machine."  Indirectly  they  have  secured 
greater  efficiency,  in  so  far  as  they  have  been  able  to  prevent 
officials  from  being  changed  at  each  change  in  the  elections. 
But  it  has  required  several  years  for  the  more  experienced  civil 
service  commissions  to  reach  the  point  where  they  could  learn 
to  conduct  examinations  directly  for  efficiency  and  for  the 
peculiar  fitness  of  the  applicant  for  the  particular  position. 
This  point  has  not  even  yet  been  reached  in  the  case  of  ap- 
plicants who  may  be  called  upon  to  enforce  the  labor  laws. 
Here  industrial  antagonism  rn^i^  been  recognized,  just  as  politi- 
cal  antagonism  has  been  recognized  and  provided  against. 
Factory  inspectors,  who  do  not  have  the  confidence  of  both 
employers  and  employees,  either  as  to  their  practical  knowl- 
edge or  their  impartiality,  are  as  inefficient  for  th^ir  positions 
as  those  who  are  avowed  politicians.  And  this  distrust  of  civil 
service  appointees  by  both  manufacturers  and  workmen  is  so 
general  and  deep  that  it  is  almost  as  difficult  to  get  their  ap- 
proval of  "civil  service  reform"  as  it  is  to  get  the  approval  of 
the  politicians.  Just  as  civil  service  reform  is  designed  to 
secure  officials  who  are  non-partisan  as  respects  political  an- 
tagonism, so  it  should  secure  factory  inspectors  who  are  im- 
partial as  respects  industrial  antagonism.  It  is  in  the  legis- 
latures and  Congress  that  organized  labor  and  organized 
capital  should  fight  out  their  legal  battles.  There  it  is  proper 
that  each  side  should  have  its  lobbies  and  its  recognized  lead- 
ers, and  should  carry  its  fight  "to  a  finish."  It  is  there  that 
public  policy  is  determined  and  that  opinions,  partisanship, 
and  prejudice  have  full  play  in  working  out  that  legislative 
discretion  which  constitutes  public  policy.  But  when  thq 


488       PRINCIPLES  OF  LABOR  LEGISLATION 

law  is  once  enacted  the  battle  should  cease,  and  the  officials 
selected  to  enforce  the  law  should  enforce  it  efficiently,  exactly 
as  it  stands,  in  harmony  with  its  policy,  and  yet  impartially 
as  between  the  two  interests.  This  is  the  present  problem  of 
"civil  service  reform"  as  respects  labor  legislation.  Labor 
law  cannot  be  enforced  if  either  employers  or  trade  unionists 
distrust  the  officials,  on  account  of  either  their  incompetency, 
their  politics,  or  their  partiality.  Even  in  states  having  civil 
service  commissions  this  distrust  continues  to  exist.  This  is 
partly  due  to  the  bureaucratic  exclusiveness  of  the  com- 
missions themselves.  An  essential  thing  in  their  method  of 
administration  is  that  they  should  admit  the  recognized  lead- 
ers of  employers  and  unions  to  a  share  in  conducting  the 
examinations.  This  is  partly  provided  for  in  the  industrial 
commission  law  of  New  York,  which  makes  the  representative 
council  of  employers  and  employees  the  assistants  to  the  civil 
service  commission  for  the  examination  of  applicants.  It  is 
provided  for  in  the  free  employment  offices  of  Wisconsin  and 
of  Denmark,  where  the  employment  officials  are  selected  by 
the  joint  committees  of  employers  and  employees. 

It  has  been  implied  above  that  the  inspectors  under  an  in- 
dustrial commission  become  investigators  as  well  as  police. 
They  cooperate  with  the  employers  and  workmen  in  drafting 
the  rules.  Their  work  consists  more  of  instructing  employers 
and  workmen  in  the  devices  and  processes  of  safety,  sanita- 
tion, and  welfare  than  in  mere  prosecutions.  But  they  can 
occupy  this  enviable  position  only  to  the  extent  that  they  are 
skilful,  efficient,  and  impartial.  "Politics"  is  fatal.  As  soon 
as  organized  employers  and  employees  have  become  accus- 
tomed to  cooperate  in  the  administration  they  tend  to  exclude 
the  politician,  because  he  drives  capital  and  labor  apart  in- 
stead of  bringing  them  together. 

(4)  Bill  Drafting 

The  history  of  labor  legislation  is  the  history  of  an  art 
as  highly  technical  and  expert  as  that  of  engineering  science 
or  that  of  an  inventor  in  electricity  or  chemistry.  Like  other 
arts,  it  is  a  history  of  trial,  experiment,  failure,  until  some- 
thing workable  is  produced.  In  early  days  an  inventor  might 


ADMINISTRATION  489 

be  merely  an  ingenious  mechanic.  Now  he  is  frequently  a 
scientist,  with  a  staff  of  assistants,  supported  and  financed  by 
large  expenditures  of  money.  Great  private  corporations 
keep  ahead  of  competition  by  means  of  their  laboratories, 
scientists,  investigators,  inventors.  When  the  government 
takes  up  invention,  as  it  has  done  in  agriculture,  it  supports 
costly  experiment  stations  and  sets  scientists  and  inventors 
to  work. 

Yet  in  the  equally  technical  field  of  legislation  the  drafting 
of  bills  remains  largely  in  the  stage  of  the  mechanic.  There 
are  two  very  distinct  divisions  in  the  process  of  legislation. 
One  is  the  discussion  of  policy,  the  other  the  framing  of  bills 
that  give  effect  to  policy.  The  former  is  the  division  belong- 
ing to  the  legislature,  drawn  from  the  ranks  of  the  people, 
The  latter  is  the  technical  work  of  experts.  In  a  private  cor- 
poration the  line  of  demarcation  corresponds  to  that  between 
the  board  of  directors  and  the  engineers,  architects,  or  lawyers. 
In  lawmakmg  it  corresponds  to  that  between  the  legislature 
and  an  administrative  commission.  The  latter  is  conducting 
experiments  in  a  great  laboratory.  The  enforcement  of  law 
is,  in  fact,  a  series  of  experiments  and  tests  upon  the  actual 
workings  of  the  law.  The  commission's  investigations  reveal 
the  gaps  and  defects.  When  the  legislature  meets,  these  tests 
and  investigations  furnish  the  technical  information  for 
amendments.  The  commission,  indeed,  when  it  drafts  its 
own  rules  and  orders,  is  doing  the  same  kind  of  technical  work 
as  when  it  assists  the  legislature  in  drafting  its  bills. 

But  administrative  commissions  are  like  the  courts  in  that 
they  follow  precedents,  and  are  conservative  in  that  they  do 
not  willingly  take  up  new  things.  Their  administrative  prob- 
lems are  sufficiently  great,  so  that  they  will  not  of  their  own 
volition  initiate  and  push  new  lines  of  public  policy.  Their 
work  is  the  perfection  and  elaboration  of  policies  already 
adopted. 

The  business  of  pioneering  new  lines  of  labor  policy  belongs 
to  the  legislature  and  to  private  associations,  or  to  a  legislative 
reference  bureau  or  a  political  department  of  labor.  But 
when  there  is  sufficient  public  opinion,  and  a  legislative  de- 
mand for  these  new  lines  of  legislation,  then  administrative 
investigation  is  superior  to  any  that  has  been  devised  for 


49o       PRINCIPLES  OF  LABOR  LEGISLATION 

ascertaining  the  facts  and  preparing  machinery  for  adminis- 
tration. It  follows  that  private  societies,  such  as  labor  unions, 
associations  for  labor  legislation,  child  labor  committees,  and 
consumers'  leagues,  are  needed  not  only  to  watch  the  existing 
administrative  machinery,  but  to  pioneer  on  new  lines  of  legis- 
lation. The  functions  of  such  private  associations  are  even 
greater  than  they  have  been  before.  They  criticize  where 
needed  and  assist  where  practicable. 

(5)  Penalties  and  Prosecutions 

Behind  all  laws  and  administrative  rules  having  the  force 
of  law  lies  the  penalty  for  violation.  No  matter  how  efficient 
the  administration  or  how  actively  employers  and  employees 
may  assist,  the  administration  would  remain  but  a  voluntary 
cooperative  society  if  not  supported  by  penalties  imposed  on 
those  who  refuse  or  neglect  to  assist. 

Yet  too  much  reliance  is  generally  placed  on  penalties  and 
punishment.  Officials  sometimes  point  to  their  record  of 
numerous  prosecutions  as  evidence  of  their  efficiency  in  office. 
Such  a  record  may  prove  exactly  the  opposite.  Penalties 
should  be  looked  upon  as  only  a  potential  power,  whose 
strongest  evidence  of  actual  power  is  sometimes  found  in  the 
least  necessity  of  resorting  to  them.  A  record  of  a  small 
number  of  prompt  and  impressive  convictions  may  mean 
more  for  the  enforcement  of  law  than  several  pages  of  statis- 
tics of  prosecutions.  At  the  other  extreme,  many  factory 
inspectors  who  in  American  states  furnish  little  or  no  evidence 
of  any  prosecutions  are  probably  not  enforcing  the  laws.1 
No  subject  of  labor  legislation  is  more  uncertain  and  unsatis- 
factory than  this  of  penalties  and  prosecutions. 

The  difficulty  in  securing  convictions  is  shown  by  a  state- 
ment of  the  commissioner  of  labor  in  New  York  in  ipo8.2 


1  The  Report  on  Condition  of  Woman  and  Child  Wage-Earners  in  the 
United  States,  Vol.  XIX,  1912  (6ist  Congress,  2d  Session,  Senate  Doc.  No. 
645);  pp.  23-88,  gives  results  of  the  most  extensive  effort  yet  made  to  in- 
vestigate the  subject  of  prosecutions.     See  also  American  Labor  Legislation 
Review,  June,  1917,  "Labor  Law  Administration  in  New  York,"  pp.  484- 
504- 

2  Report  on  Condition  of  Woman  and  Child  Wage-Earners  in  the  United 
States  (6ist  Congress,  2d  Session,  Senate  Doc.  No.  645),  p.  44. 


ADMINISTRATION  49 1 

In  thirty-two  cases  of  illegal  employment  and  overtime  work 
of  women  and  children  tried  before  juries  in  a  period  of  three 
months  not  a  single  conviction  was  obtained,  although  it  was 
shown  in  one  instance  that  a  woman  worked  seventeen  hours 
in  one  day  and  in  another  that  a  child  was  only  seven  years 
old.  The  inspector's  report  for  1907  showed  that  in  one-half 
of  the  294  cases  where  conviction  was  secured  the  court  re- 
mitted the  fine,  and  in  most  of  the  other  cases  only  the  mini- 
mum fine  was  imposed,  averaging  about  $26  a  case.1  Other 
states  show  a  similar  leniency. 

In  American  labor  legislation,  little  attention  has  been 
paid  to  the  careful  adjustment  of  penalties  to  offenses.  The 
amount  of  penalty  seems  to  be  determined  very  largely  at 
random,  and  there  is  a  great  variety  of  penalties  in  the  same 
state  and  in  different  states.  Too  frequently  the  idea  seems 
to  be  that  the  more  severe  the  penalty  the  greater  the  likeli- 
hood of  enforcing  compliance.  This  frequently  fails  of  its 
purpose,  because  courts  and  juries  often  permit  an  offender 
to  escape  entirely  rather  than  subject  him  to  a  penalty  out 
of  proportion,  as  they  see  it,  to  the  offense. 

Yet  a  distinction  must  be  made  between  penalties  for  a 
single  offense  and  penalties  for  a  continuing  offense.  Failure 
to  return  a  child  worker's  employment  permit  may  be  treated 
as  a  single  offense ;  but  employment  of  the  child  beyond  work- 
ing hours  may  be  treated  as  a  continuing  offense,  repeated 
every  day  that  the  child  is  so  employed.  Here  is  a  cumula- 
tive injury  to  the  child  which  the  law  seeks  to  prevent,  and, 
very  properly,  a  cumulative  penalty  might  be  imposed,  mak- 
ing each  day  for  each  child  a  separate  and  distinct  offense. 
If  the  penalty,  for  example,  is  $10  to  $100  for  each  offense, 
even  the  minimum  penalty  would  accumulate  effectively. 
Otherwise,  if  treated  as  a  single  offense  for  each  child,  no  mat- 
ter how  long  continued,  the  penalty  might  bear  no  adequate 
proportion  to  the  profit  derived  from  the  child's  labor. 

This  method  of  cumulative  penalties  has  been  more  or  less 
adopted  in  the  industrial  commission  laws  of  several  states, 
thereby  making  each  day  during  which  an  employer  fails  to 
observe  or  comply  with  any  order  of  the  commission  or  any 

1  Report  on  Condition  of  Woman  and  Child  Wage-Earners  in  the  United 
States  (6ist  Congress,  2d  Session,  Senate  Doc.  No.  645),  p.  48. 


492       PRINCIPLES  OF  LABOR  LEGISLATION 

section  of  the  statute  a  separate  violation.1  Cumulative  pen- 
alty provisions,  however,  are  construed  very  strictly  by  the 
courts,  and  the  language  of  the  statute  must  be  made  perfectly 
clear. 

Another  distinction  of  importance  is  that  between  a  crimi- 
nal action  and  a  civil  action.  Formerly,  when  employers  were 
mostly  small  employers  with  but  little  property,  the  criminal 
penalties  of  fine  or  imprisonment,  which  are  the  ordinary 
penalties  for  violation  of  police  regulations,  seemed  to  be  ap- 
propriate. But  these  criminal  penalties  are  practically  out 
of  date  when  it  comes  to  enforcing  the  law  against  corpora- 
tions. Moreover,  in  criminal  prosecutions  the  individual  em- 
ployer has  many  technical  defenses  based  on  the  presumption 
of  innocence.  A  readier  and  simpler  method  is  the  "action 
of  debt,"  a  civil  action  employed  to  recover  taxes  or  penalties 
under  the  guise  of  a  debt  owing  the  state.2  This  form  of 
action  is  now  generally  adopted  in  the  case  of  railroad  com- 
missions and  industrial  commissions,  along  with  the  cumula- 
tive penalty.  It  is  more  effective  against  corporations,  and 
it  recognizes  the  cold  fact  that  courts  and  juries  are  loath  to 
impose  criminal  penalties  on  employers  when  their  offense  is 
the  violation  of  laws  enacted  for  the  protection  of  labor. 

Prosecutions  are  generally  brought  in  justice  courts  or 
other  inferior  criminal  courts.  It  is  obvious  that  such  courts 
are  not  equipped  to  decide  technical  questions,  and  the  limita- 
tions imposed  by  rules  of  evidence  on  the  admissibility  of 
testimony  make  it  practically  impossible  for  the  court  to  ob- 
tain the  expert  information  and  opinion  essential  to  intelligent 
decision  of  such  cases. 

There  are  two  classes  of  questions,  often  equally  technical. 
One  is  the  question  of  fact,  the  other  of  constitutionality  of 
a  statute  or  of  reasonableness  and  validity  of  an  administra- 
tive rule.  A  technical  question  of  fact  is,  for  example,  whether 
a  certain  room  is  sufficiently  ventilated  or  sufficiently  lighted. 
A  question  of  constitutionality  or  reasonableness  is  whether 


1  Wisconsin,  Laws  1911,  Sees.  2394-60;  Ohio,  Laws  1913,  Sees.  871-44; 
Colorado,  Laws  1915,  C.  180,  Sees.  44,  45. 

2  Stockwell  v.  U.  S.,  13  Wall.  531  (1871);  Chaffee  v.  U.  S.f  18  Wall.  516 
(1873):   Florida  Central  R.  Co.  v.  Reynolds,  183  U.  S.  471,  22  Sup.  Ct. 


ADMINISTRATION  493 

a  statute  or  administrative  rule  limiting  a  woman's  work  to 
a  certain  number  of  hours  is  valid.  Both  involve  questions 
of  fact,  but  the  two  questions  can  be  separated.  If  a  justice's 
court,  or  a  jury,  as  in  the  instance  above  referred  to,  refuses 
to  convict  an  employer  who  is  shown  to  have  allowed  a  woman 
to  work  seventeen  hours  in  face  of  a  law  restricting  her  work 
to  ten  hours,  it  is  really  deciding  not  only  the  fact  of  violation, 
but  also  the  reasonableness  of  the  law.  Hence  it  is  that  in 
states  which  have  industrial  commissions  with  power  to  issue 
rules  the  attempt  is  made  to  separate  the  two  questions. 
The  question  of  fact  is  determined  in  a  lower  court.  But  the 
question  of  reasonableness  or  validity  can  be  raised  only  in 
a  different  suit  in  a  higher  court.  The  employer  is  permitted 
first,  by  the  provisions  of  the  law,  to  test  the  reasonableness 
or  validity  of  the  rule  in  a  hearing  before  the  commission. 
Next  he  has  a  right  of  appeal  to  a  higher  court  on  questions  of 
law.  If  no  such  hearing  or  appeal  is  taken  within  a  specified 
time,  then  no  question  can  be  raised  in  the  inferior  court 
except  the  fact  of  compliance  or  non-compliance  with  the  rule 
or  order  of  the  commission.1 

A  similar  facility  is  afforded  to  the  inferior  court,  in  passing 
upon  questions  of  fact,  by  the  provision  that  the  commission 
may  draw  up  specific  standards  fitted  to  each  occupation,  or 
even  to  a  single  shop,  where  the  legislative  standard  is  liable 
not  to  take  into  account  real  differences.  These  standards, 
if  previously  passed  upon  by  representative  committees  of 
employers  and  employees,  can  be  made  both  definite  and  prac- 
ticable, and  therefore  not  a  matter  of  such  controversy  or 
opinion  as  to  require  expert  testimony  in  the  lower  court. 

This  simplifies  the  work  of  the  factory  inspector  in  the 
field.  He  is  the  prosecuting  witness.  His  opinion  of  whether 
the  law  is  violated  or  not  is  set  up  against  the  opinion  of  the 
employer  or  his  representative.  All  doubts  are  resolved  in 
favor  of  the  defendant.  But  with  the  more  precise  standards 
set  by  a  commission  there  is  less  dependence  on  weight  of 
opinion.  If  a  statute  merely  says  that  workshops  shall  be 
"sufficiently  lighted,"  the  factory  inspector  must  set  up  his 
opinion  against  the  employer's  opinion  as  to  whether  the  light 
in  his  shop  is  sufficient.  The  jury  must  then  pass  upon  both 

1  See  Wisconsin,  Laws  1911,  Sees.  2394-57,  2394-59. 


494       PRINCIPLES  OF  LABOR  LEGISLATION 

the  fact  of  violation  and  the  opinion  of  the  inspector.  But  if 
the  commission  upon  investigation  ascertains  that  one-quarter 
candle-power  for  every  square  foot  of  floor  space  is  sufficient 
for  that  class  of  shops,  then  the  inspector  needs  to  prove 
only  that  the  amount  of  light  was  less  than  this  standard. 

These  provisions  do  not  mean  that  less  competent  inspectors 
may  be  employed.  They  mean  that  much  more  time  may  be 
given  to  actual  inspection  and  less  to  prosecutions.  The  in- 
spector, in  the  ordinary  prosecutions,  wastes  an  incalculable 
amount  of  time  in  assembling  and  producing  in  court  the  evi- 
dence of  the  alleged  violation.  His  current  inspection  work 
must  be  neglected  in  order  that  he  may  attend  court,  await- 
ing the  trial  of  the  case,  or  attempting  to  convince  a  court  or 
jury  of  the  accuracy  and  honesty  of  his  observation  of  con- 
ditions out  of  which  the  alleged  violation  grew.  Where  he 
should  be  engaged  in  discovering  violations  and  suggesting 
means  of  compliance,  he  is  marshaling  evidence  and  trying 
to  convince  third  parties  of  deviations  from  ambiguous 
standards. 

An  interesting  method  of  enforcing  compliance,  which  is 
more  and  more  coming  into  prominence,  is  to  give  the  au- 
thorities power  to  stop  work  on  a  machine  or  in  an  establish- 
ment which  violates  the  law.  Thus  in  several  states  inspectors 
may  place  upon  machinery  a  notice  forbidding  its  use  until 
specified  safety  measures  have  been  taken.  In  some  states 
mines  may  be  absolutely  closed,  and  in  1915  legislation  in 
Montana  and  in  Delaware  extended  the  same  principle  to 
certain  factories  and  workshops.  According  to  the  Delaware 
statute,  a  cannery  violating  the  law  may  upon  a  third  con- 
viction be  closed  by  the  court,  and  the  person  convicted  may 
be  prohibited  from  engaging  in  the  cannery  business  until 
further  court  order.  California,  also,  in  1915  authorized  the 
closing  by  the  courts  of  labor  camps,  upon  their  failure  to 
comply  within  reasonable  time  with  the  sanitary  provisions 
laid  down  for  them. 

Various  devices  have  been  invented  in  the  drafting  of  labor 
laws  to  determine  whether  the  provisions  of  the  law  are  being 
complied  with.  The  possibility  of  detecting  all  violations  by 
official  inspection  are  obviously  limited.  An  army  of  in- 
spectors making  constant  visits  would  be  required.  The  pros- 


ADMINISTRATION  495 

ecution  may  be  relieved  of  a  portion  of  its  burden  of  proof 
by  a  provision  that  certain  facts  shall  constitute  prima  facie 
evidence.  The  burden  is  always  on  the  prosecution  to  prove 
circumstances  which  constitute  a  violation  of  a  statutory  pro- 
vision. Thus  where  a  statute  forbids  the  employment  of 
children  under  sixteen  except  under  specified  conditions,  the 
prosecution  for  an  alleged  offense  must  prove  the  employ- 
ment of  the  child,  must  prove  that  the  child  was  under  six- 
teen, and  must  prove  that  the  circumstances  authorizing  the 
employment  of  a  child  of  that  age  were  not  present.  This 
ordinary  rule  respecting  the  burden  of  proof  may,  however, 
be  altered  by  the  legislature.  The  difficulty  of  enforcing  the 
one  day  of  rest  in  seven  law  l  has  been  considerably  lessened 
in  New  York  by  a  requirement  that  the  employer  shall  post 
"a  schedule  containing  a  list  of  his  employees  who  are  required 
or  allowed  to  work  on  Sunday  and  designating  the  day  of 
rest  for  each,"  and  shall  file  a  copy  of  such  schedule  with  the 
industrial  commission.  This  provision  reduces  the  necessity 
of  inspection  to  the  single  question  whether  any  employee 
named  on  the  schedule  as  entitled  to  rest  on  any  day  is  at 
work  on  that  day.  That  in  itself  constitutes  a  violation  of  the 
substantive  provision  that  "no  employee  shall  be  required 
or  allowed  to.  work  on  the  day  of  rest  so  designated  for  him." 
Similar  provisions  are  employed  in  enforcing  laws  regulating 
hours  of  labor.2  The  New  York  law  regulating  the  employ- 
ment of  children  under  the  age  of  sixteen  requires  the  em- 
ployer of  such  children  to  keep  a  record  of  the  name,  birth- 
place, age,  and  residence  of  such  children  and  to  produce 
such  record  for  inspection  by  the  agents  of  the  industrial 
commission.  The  employer  is  also  required  to  keep  on  file 
and  to  furnish  on  demand  of  the  commission  the  child's  em- 
ployment certificate.  If  he  cannot  furnish  the  certificate  of 
employment,  the  employer  is  required  within  a  specified  time 
to  produce  satisfactory  evidence  that  the  child  is  over  six- 
teen, or  to  discontinue  his  employment.  Proof  of  the  com- 
mission's demand  for  evidence  of  the  age  of  the  child  and  of 
the  employer's  failure  to  produce  such  evidence  is  made  prima 
facie  evidence  in  a  prosecution  for  the  violation  of  a  provision 

1  See  "One  Day  of  Rest  in  Seven,"  p.  278. 

2  See  "Maximum  Hours,  Women,"  p.  241. 


496       PRINCIPLES  OF  LABOR  LEGISLATION 

of  the  law  that  the  child  is  under  sixteen  and  unlawfully 
employed.1 

Of  the  devices  to  assist  the  officials  which  have  been  made 
use  of  in  this  country,  those  which  impose  upon  the  employer 
the  duty  to  keep  some  sort  of  current  record  of  conditions  or 
happenings  in  his  plant  are  the  most  important  aids  to  official 
inspection.  Records  of  accidents,  certified  daily  time  reports, 
registers,  and  account  books  are  frequently  required  by  labor 
laws. 

There  is,  however,  a  limitation  on  the  extent  to  which  the 
employer  can  be  compelled  to  collect  and  record  for  official 
use  the  evidence  of  his  own  violation  of  the  law.  Our  con- 
stitutions generally  protect  the  individual  against  a  require- 
ment that  he  testify  against  himself.  When  the  requirement 
of  records  becomes  practically  a  system  of  compelling  testi- 
mony against  himself,  the  employer  may  refuse  to  comply 
and  depend  upon  his  constitutional  guaranty. 

Licensing  a  business  practice  or  place  of  employment  affords 
another  means  of  increasing  the  possibilities  of  enforcement, 
especially  if  the  licensee  be  required  to  give  bond.  This  method 
is  employed  in  the  regulation  of  employment  offices  and  sweat- 
shops. License  requirements  are  ordinarily  supplemented  by 
a  prohibition  of  action  without  the  license.  Failure  to  pro- 
duce the  license  is  thereby  made  proof  of  violation.  The 
license  is  usually  issued  on  condition  that  the  standards  im- 
posed by  the  law  be  complied  with.2  Fear  of  loss  of  the  license 
and  of  summary  recovery  on  the  bond  affords  strong  induce- 
ment for  compliance.  The  license,  however,  does  not  entirely 
obviate  the  necessity  for  inspection  or  other  means  of  obtain- 


1  New  York,  Consolidated  Laws,  1909,  €.31,  Sec.  76. 

2  Examples  of  such  laws  applied  to  employment  offices  are  found  in 
California,  Code,  1906,  Sec.  3580;   Colorado,  Laws  1909,  C.  164;   Massa- 
chusetts, Revised  Laws  1902,  C.  102,  Sec.  23;  Minnesota,  Laws  1905,  C. 
274.     Tenement  -  house    manufactures    must    be    licensed    in    Indiana, 
Annotated  Statutes  1901,  Sec.  7o87n;    Maryland,  Public  General  Laws 
1911,   Art.   XXVII,    Sec.   240;     Massachusetts,   Laws    1909,    Sec.    106; 
Michigan,  Laws  1909,  No.  285,  Sec.  22;   New  Jersey,  Compiled  Statutes 
1910,  Sec.  46;    New  York,  Laws  1913,  C.  260;    Pennsylvania,  Brightly's 
Digest,  1893-1903,  p.  825,  Sec.  I.     A  similar  idea  is  expressed  in  the 
"sanitary  certificate"  required  for  bakeries  and  establishments  manu- 
facturing food  in  some  states,  for  example,  New  York,  Laws  1913,  C.  463; 
Washington,  Codes  and  Statutes,  1910,  Sec.  5487. 


ADMINISTRATION  497 

ing  evidence  as  to  compliance  by  the  licensee  with  the  require- 
ments of  the  law  or  the  conditions  of  the  license. 

In  the  effort  to  secure  enforcement  of  laws  prohibiting  or 
regulating  sweatshops,  resort  has  been  had  to  the  device  of 
tagging  the  products  of  sweatshops.1  In  some  cases  the  value 
of  the  tag  is  not  due  so  much  to  the  fact  that  it  aids  en- 
forcement of  provisions  regulating  the  sweatshop  industries 
as  to  the  discouragement  of  that  industry  by  branding  its 
products  and  discouraging  their  purchase  by  the  public. 

After  the  evidence  of  violation  of  the  requirements  of  the 
law  is  secured,  the  marshaling  and  presentation  of  that  evi- 
dence to  the  court  in  which  a  prosecution  is  conducted  is  of 
the  greatest  importance.  Ordinarily,  it  is  the  business  of  the 
district  attorney  or  the  attorney-general  to  conduct  prosecu-  • 
tions.  The  department,  however,  which  administers  the  law 
violated  is  under  obligation  to  secure  the  evidence  of  vio- 
lation and  present  it  to  the  prosecuting  officer.  In  practice, 
other  duties  so  absorb  the  time  and  attention  of  the  attorney- 
general  and  the  district  attorney  that  they  give  little  considera- 
tion to  the  preparation  of  prosecutions  for  violation  of  police 
regulations.  The  rules  of  evidence,  especially  in  criminal 
prosecutions,  are  very  technical.  It  is  difficult  even  for  a 
lawyer  to  determine  what  is  relevant  testimony.  It  frequently 
happens  that  a  factory  inspector,  without  legal  training  or 
sympathetic  legal  advice,  bases  a  prosecution  on  testimony 
which,  because  of  technical  rules,  will  not  be  admitted  by  the 
courts,  and  therefore  the  prosecution  falls.  This  need  of  sym- 
pathetic, constant  legal  assistance  to  administrative  officials  in 
securing  and  furnishing  the  evidence  of  violation  has  resulted, 
in  many  jurisdictions,  in  the  assignment  of  a  special  assistant 
attorney-general,  district  attorney  or  city  counsel  to  attend  to 
prosecutions  for  violations  of  laws  enforced  by  a  particular 
administrative  department.  An  assistant  to  the  corporation 
counsel  in  New  York  City  devotes  his  entire  time  to  advising 
the  tenement  house  department  and  prosecuting  violations  of 
the  tenement  house  law.  In  New  York,  instead  of  having  a 
special  deputy  attorney-general  assigned  to  the  industrial  com- 
mission, the  legislature  provided  for  a  counsel  and  three  as- 
sistants whose  duty  it  is  to  assist  in  the  preparation  of  prosecu- 

1  New  York,  Laws  1913,  C,  260. 


498       PRINCIPLES  OF  LABOR  LEGISLATION 

tions  and  in  the  conduct  of  such  prosecutions  in  the  courts. 
By  arrangements  with  district  attorneys,  counsel  to  the  com- 
mission actually  conducts  the  prosecutions  in  the  criminal 
courts,  but  he  does  this  subject  to  the  control  of  the  district 
attorney. 

(6)  Cooperation  by  Pressure 

Penalties  and  prosecutions  are  coercive  methods  of  adminis- 
tration. But  the  workmen's  compensation  laws  adopted  in 
several  states  indicate  a  new  and  important  administrative 
principle.  Prior  to  the  adoption  of  these  laws,  the  only  in- 
ducements offered  to  the  employer  to  prevent  accidents  to  his 
employees  were  the  liability  laws  and  the  factory  acts.  The 
employer  was  treated  as  a  criminal,  and  naturally  he  revolted 
and  obeyed  only  as  little  of  the  laws  as  he  might  be  exposed 
to  on  account  of  his  lack  of  political  influence  or  the  in- 
efficiency of  inspectors.  But  the  compensation  laws,  by 
requiring  him  to  pay  for  all  accidents,  instead  of  merely  those 
he  cannot  escape,  tend  to  bring  upon  him  a  universal  pecuniary 
pressure,  like  that  of  taxation,  which  induces  him  to  prevent 
all  accidents  and  to  provide  for  early  recovery  of  the  victims. 
This  is  especially  true  if  the  law  is  so  drafted  as  to  lay  the 
emphasis  on  prevention  and  medical  and  surgical  treatment. 

This  class  of  legislation  is  cooperative,  instead  of  coercive. 
The  employer  now  takes  as  much  interest  as  the  employee  in 
having  the  factory  inspectors  efficient  and  helpful.  Further- 
more, he  establishes  his  own  "safety  department,"  which  is 
always  watchful  and  far  more  efficient  than  the  small  number 
of  state  inspectors  that  the  taxpayers  will  allow.  In  this  way 
"social  insurance"  in  its  many  forms  of  accident,  health, 
invalidity,  old  age,  and  unemployment  insurance,  may  be  ex- 
pected, if  the  laws  are  properly  drafted  and  then  properly  ad- 
ministered, to  bring  about  the  cooperation  of  employer,  em- 
ployee, and  the  state,  where  the  older  methods  of  coercion 
were  ineffective  and  productive  of  antagonism. 

The  insurance  principle  also  provides  an  inducement  for 
employers  and  employees  to  give  sufficient  of  their  time  to 
the  administration  of  labor  law.  This  is  the  peculiar  need  and 
weakness  of  American  administration.  Private  citizens  leave 
administration  to  professional  politicians.  Employers  hire 


ADMINISTRATION  499 

attorneys  to  represent  them  in  legislation.  A  kind  of  con- 
stant pressure  is  needed  that  will  induce  them  to  take  part 
themselves  in  public  administration  exactly  as  they  do  in  the 
administration  of  their  factories.  Financial  gain  or  loss  is 
this  universal  pressure,  not  depending  on  exhortation  or  pub- 
lic spirit.  Social  insurance,  properly  organized  and  admin- 
istered under  the  supervision  of  those  who  pay  the  bills,  con- 
verts the  prevention  of  accidents  and  the  preservation  of 
health  from  sentiment  and  humanitarianism  into  business  and 
profits.  It  makes  it  worth  while  for  employers  to  give  time 
to  public  service. 

Thus  social  insurance  accomplishes  what,  in  France,  is 
called  solidarism,  as  a  correction  of  individualism.1  The 
health  and  welfare  of  every  wage-earner  is  "affected  by  a 
public  interest"  when  the  industry  or  the  community  is  re- 
quired to  make  good  the  loss.  Each  laborer  then  becomes  a 
''public  utility."  Individualism,  While  it  highly  rewards  the 
fortunate  individual,  carries  with  it  the  sole  responsibility  and 
liability  for  his  own  misfortunes.  The  solidarism  of  social 
insurance  enforces  the  joint  responsibility  of  employer,  em- 
ployee, and  the  community. 

But  social  insurance  is  an  administrative  rather  than  a 
judicial  problem.  It  takes  the  question  of  individual  liability 
out  of  the  hands  of  the  courts  and  places  it  in  the  hands  of 
executives.  It  avoids  litigation  over  past  misfortunes  and 
substitutes  "social  prevention"  of  future  misfortunes.  For 
this  reason,  the  administrative  officials  of  the  state  cannot 
successfully  deal  with  social  insurance  except  through  the  co- 
operation of  employers  and  employees,  and  the  latter  will  not 
effectually  cooperate  except  through  the  inducement  of 
financial  gain.  Hence  it  is  that  well-considered  schemes  of 
social  insurance  distribute  the  burden  of  expense  between 
employer,  employee,  and  the  state.  This  is  plain  in  the  form 
of  health  insurance,  where  the  employee  contributes  a  share 
of  the  insurance  premiums.  It  may  also  be  brought  about  in 
non-contributory  schemes  of  accident  compensation,  where,  in 
place  of  denying  the  employee  any  compensation  at  all  in  case 
of  "wilful  misconduct,"  his  compensation  is  reduced,  say, 

1  Le~on  Bourgeois,  "International  Organization  of  Social  Policies," 
American  Labor  Legislation  Review,  March,  1914,  p.  186. 


500       PRINCIPLES  OF  LABOR   LEGISLATION 

10  or  15  per  cent.  This  minimizes  contests  in  court  over 
"wilful  misconduct,"  but  at  the  same  time  forces  the  work- 
man to  contribute  when  he  is  plainly  responsible. 

This  and  other  devices  illustrate  the  differences  between 
legislation  with  its  court  procedure,  which  penalizes  the  in- 
dividual for  past  acts,  and  administration  based  on  insurance 
which  induces  him  to  avoid  future  acts.  The  matter  resolves 
itself  into  a  series  of  adjustments  which  balance  the  motive 
of  pecuniary  gain  or  loss  against  the  carelessness,  greed,  or 
oppression  that  produces  misfortune  and  suffering.  These 
nice  adjustments  can  be  worked  out  only  through  the  ac- 
cumulated tests  and  trials  of  administrative  investigations, 
where  employers,  employees,  and  officials  join  together,  and 
not  through  partisan  conflicts  in  legislatures  or  legal  battles 
in  court. 

Thus  "solidarism"  is  that  goal  of  labor  legislation  where 
^LTP"  bf.  trHy  gfl-id  t.Viftt  "anTnjury  to  one  is  the  concern  of 
Jill*"  On  the  financial  side  it  is  such  an  arrangement  that  all 
will  equitably  bear  the  burdens  that  fall  upon  each  individual,. 
On  the  side  of  human  motives  it  is  a  departure  from  litigation 
and  the  fear  of  occasional  criminal  penalties  to  the  adoption 
of  continuous  inducements  for  the  prevention  of  misfortune 
and  oppression*  On  the  side  of  administration  it  is  the  co- 
operative investigation  of  conditions  by  employers,  employees, 
and  the  state  through  representatives  and  officials  in  whose 
ability  and  integrity  all  have  confidence.  On  the  side  of  a 
broader  social  philosophy  it  is  the  recognition  both  of  class 
struggle  and  common  interest  as  permanent  facts,  and  then 
the  adjustment  of  laws  and  administration  so  as  to  equalize 
the  struggle  and  utilize  the  common  interest  for  a  public 
benefit. 


, 


SELECT  CRITICAL  BIBLIOGRAPHY 

In  preparing  the  following  select  critical  bibliography,  ar- 
ranged by  chapters,  an  effort  has  been  made  to  bring  together 
only  the  most  helpful  and  the  most  accessible  works  on  labor 
legislation. 


I.    THE  BASIS  OF  LABOR  LAW 


American  association  for  labor 
legislation.  American  labor  leg- 
islation review.  Quarterly  ,1911- 
One  issue  each  year  summarizes  new 
labor  legislation  enacted  by  Congress 
and  by  the  several  states. 

Andrews,  J.  deWitt.  American 
law,  a  commentary  on  the  juris- 
prudence, constitution,  and  laws 
of  the  United  States.  Chicago, 
Callaghan,  1908.  2  v. 

"Constructed  in  accordance  with  the 
institutional  or  analytical  method,  with 
the  object  of  producing  an  elementary 
treatise  possessing  as  much  of  the  prac- 
tical as  is  possible  within  the  space  de- 
vpted  to  the  work."  Intended  to  pro- 
vide a  classification  that  will  fit  American 
conditions. 

Andrews,  John  B.  Labor  prob- 
lems and  labor  legislation.  New 
York,  American  association  for 
labor  legislation,  1919.  138  p. 

Brief  popular  treatment,  heavily  illus- 
trated. 

Chapman,  Sydney  J.  Work  and 
wages;  in  continuation  of  Earl 
Brassey's  "Work  and  wages" 
and  "Foreign  work  and  English 
wages."  Part  III,  "Social  bet- 
terment." London,  Longmans, 
Green,  1914.  viii,  382  p. 

Beginning  with  the  foundations  of 
sociaf  reform,  the  author  discusses  such 
questions  as  industrial  training,  home 
work,  woman's  labor. 


Clark,  Lindley  D.     The  law  of  the 

employment  of  labor.    New  York, 
Macmillan,  1911.     xiv,  373  p. 

Deals  with  the  principles  underlying 
the  common  law  and  legislation  as  far 
as  these  affect  the  relation  between  em- 
ployer and  employee.  Written  from  a 
legal  standpoint.  Appendix,  giving  a  code 
of  the  common  law  affecting  employment. 
Coman,  Katharine.  The  indus- 
trial history  of  the  United  States. 
New  York,  Macmillan,  1912. 
xi,  461  p. 

Sketches  the  industrial,  commercial, 
and  financial  development  of  the  nation 
from  colonial  times  till  the  present  day 
and  ends  with  two  chapters  on  con- 
temporary problems  and  conservation. 
Commons,  John  R.  Industrial 
goodwill.  New  York,  McGraw- 
Hill,  1919.  213  p. 

Treats  of  labor  legislation  as  supple- 
menting goodwill  by  raising  the  general 
level  of  competition. 

Commons,  John  R.;  Saposs, 
David  J.;  Summer,  Helen  L.; 
Mittelman,  E.  B.;  Hoagland, 
H.E.;  Andrews,  John  B.;  Perl- 
man,  Selig.  History  of  labor 
in  the  United  States.  New  York, 
Macmillan,  1918.  2v.;  xxv,  623; 
xx,  620  p. 

Recounts  by  successive  periods  the 
efforts  of  American  wage-earners  to  im- 
prove their  conditions  by  trade  union 
activity  and  through  labor  legislation. 


502       PRINCIPLES  OF  LABOR  LEGISLATION 


Ely,  Richard  T.  Property  and 
contract  in  their  relations  to  the 
distribution  of  wealth.  New 
York,  Macmillan,  1914.  2  y. 

Gives  a  wide  survey  of  the  theories  of 
property  and  contract  held  at  different 
times;  interprets  cases  on  police  power 
according  to  a  progressive  theory.  Many 
references. 

Economic  theory  and  labor 

legislation.  (Proceedings  Amer- 
ican association  for  labor  legisla- 
tion, ist  annual  meeting,  p.  10- 
39.)  lylach'son,  Wis.,  1908. 

Examines  the  attitude  of  the  classical 
economists  toward  social  reform.  First 
presidential  address  of  the  American 
association  for  labor  legislation. 
Fa rn am,  Henry  W.  Some  funda- 
mental distinctions  in  labor  legis- 
lation. (Proceedings  American 
association  for  labor  legislation, 
2d  annual  meeting,  p.  29-42.) 
Madison,  Wis.,  1909. 

Discusses  the  different  types  of  labor 


laws  and  the  purposes  for  which  they  are 

jnd  presic 
lerican  , 
lation. 


enacted.     Second  presidential  address  of 
the  American  association  for  labor  legis- 


Freund,  Ernst.  The  police  pow- 
er, public  policy,  and  constitu- 
tional rights.  Chicago,  Callaghan, 
1904.  xiii,  819  p. 

A  thorough  and  learned  study  of  the 
police  power  in  its  various  aspects. 
Goodnow,    Frank   J.      Social   re- 
form and  the  constitution.     New 
York,  Macmillan,  1911.  xxi,  365  p. 

An  attempt  to  determine  how  far  the 
constitution  is  a  bar  to  social  progress; 
with  a  chapter  on  the  attitude  of  the 
courts. 

Groat,  George  G.  The  attitude 
of^  American  courts  in  labor  cases. 
(Columbia  university  studies  in 
history,  economics,  and  public 
law,  v.  42,  no.  108.)  New  York, 
Longmans,  Green,  1911.  400  p. 

Analysis  and  criticism  of  court  deci- 
sions on  trade  unipn  activities  and  pro- 
tective labor  legislation. 

Hastings,  William  G.  The  de- 
velopment of  law  as  illustrated 
by  the  decisions  relating  to  the 
police  power  of  the  state.  (Pro- 
ceedings of  the  American  philo- 
sophical society,  1900,  v.  39;  359- 
554.)  . 

Original  and  suggestive  treatment. 

Hutchins,  B.  L.t  and  Harrison, 
Amy.  A  history  of  factory  leg- 


islation. London,  King,  1903. 
xviii,  372  p. 

History  of  factory  legislation  in  Eng- 
land from  the  Elizabethan  poor  law  to 
1903.  Preface  by  Sidney  Webb. 
International  labor  office.  Bul- 
letin of  the  international  labor 
office.  Jena,  1902-,  Paris,  1902-, 
London,  1906-,  monthly. 

Separate  editions  in  English,  French, 
and  German  give  texts  of  labor  laws  and 
of  administrative  orders  in  all  countries. 

Jevons,    William    Stanley.     The 

state  in  relation  to  labor.  Lon- 
don, Macmillan,  1882.  174  p. 

An  effort  to  define  the  extent  to  which 
protective  labor  legislation  and  laws 
establishing  the  rights  of  trade  unions 
may  be  carried  in  a  laissez-faire  society. 

Pic,  Paul.  Traite  elementaire  de 
legislation  industrielle;  les  lois 
ouvricres.  Paris,  Rousseau,  1912. 
xv,  1206  p. 

A  scholarly  collection  and  arrangement 
of  laws  on  labor,  with  a  theoretical  and 
historical  introduction.  Deals  primarily 
but  not  exclusively  with  France. 

Thorpe,  Francis  N.  (comp.).  The 
federal  and  state  constitutions, 
colonial  charters,  and  other  or- 
ganic laws  of  the  states,  terri- 
toriSs,  and  colonies  now  or  here- 
tofore forming  the  United  States 
of  America.  (H.  R.  doc.  357, 
59th  Cong.,  2d  sess.)  Washing- 
ton, Govt.  print,  off.,  1909,  7  v. 

A  complete  collection  of  organic  laws, 
lacking  only  the  constitutions  of  Arizona 
and  New  Mexico,  which  were  adopted  in 
1910. 

United  States.  Bureau  of  labor 
statistics.  Bulletins.  Washing- 
ton, Govt.  print,  off.,  1895- 

Issues  giving  up-to-date  texts  of 
American  labor  laws  and  court  decisions 
thereon  are:  No.  148,  "Labor  laws  of 
the  United  States,  with  decisions  of  the 
courts  relating  thereto"  (2  v.);  No.  152, 
"Decisions  of  courts  and  opinions  af- 
fecting labor,  1913";  No.  166,  "Labor 
legislation  of  1914";  No.  169,  "De- 
cisions of  courts  affecting  labor,  1914"; 
No.  186,  "  Labor  legislation  of  1915"; 
No.  189,  "Decisions  of  courts  affecting 
labor:  1915";  Xo.  213,  "Labor  legisla- 
tion of  1916";  No.  224,  "Decisions 
of  courts  affecting  labor:  1916";  Xo. 
244,  yLabor  legislation  of  1917";  No. 
246,  "Decisions  of  courts  affecting  labor  : 
1917";  No.  237,  "Labor  legislation  of 
1918." 


Monthly    labor    review. 
Washington,    Govt.    print,    off., 


BIBLIOGRAPHY 


503 


Contains  summaries  of  labor  laws 
under  discussion  and  enacted  in  the 
United  States  and  abroad. 
. Children's  bureau.  Pub- 
lications. Washington,  Govt. 
print,  off.,  1913- 

Giye  summaries  and  tabular  analyses 
of  legislation  on  child  labor. 

Webb,  Beatrice.    The  case  for  the 


factory  acts.    London,  Richards, 
1902.     233  p. 

Economic  and  social  justification  for 
social  regulation  of  labor  conditions. 
Willoughby,  W.  W.    The  constitu- 
tional law  of  the  United  States. 
New  York,  Baker,  VoorhiSj  19 10. 2  v. 

Deals  with  the  general  principles  un- 
derlying constitutional  law. 


II.     INDIVIDUAL  BARGAINING 


Anson,  William  rt.  Principles  of 
the  English  law  of  contract  and  of 
agency  in  its  relation  to  contract. 
Edited  with  American  notes  by 
E.  W.  Huffcut.  New  York,  Ox- 
ford university  press,  American 
branch,  1906.  li,  462  p. 

Standard  English  work  on  the  subject, 
edited  for  American  use. 

Ballagh,  James  C.  White  servi- 
tude in  the  colony  of  Virginia; 
a  study  of  the  system  of  indent- 
ured labor  in  the  American 
colonies.  Baltimore,  Johns  Hop- 
kins press,  June-July,  1895. 
(Johns  Hopkins  university  stud- 
ies in  historical  and  political 

science,,  v.  I3:259~357-) 

Representative  picture  of  the  condi- 
tions of  indentured  service  in  the  south; 
includes  a  chapter  on  "The  freedman." 

Cant-Wall,  Edward.  Ireland  un- 
der the  land  act;  letters  contrib- 
uted to  the  "Standard"  news- 
paper; with  an  appendix  of  lead- 
ing cases  under  the  act,  giving 
the  evidence  in  full,  judicial 
dicta,  &c.  London,  Chatto  and 
Windus,  1882. 

Excellent  material  illustrating  the 
operations  of  the  Irish  land  commission. 

Commons,  John  R.  Races  and 
immigrants  in  America.  New 
York,  Macmillan,  1913.  xiii, 
242  p. 

An  estimate  of  the  contribution  made 
by  each  race  to  the  nation  as  a  whole. 

Congressional  record,  containing 
the  proceedings  and  debates  of 
the  63d  Cong.,  2d  sess.,  v.  51: 
4296-4300,  speech  of  J.  I.  Nolan, 
Mar.  4,  1914.  Washington,  Govt. 
print,  off.,  1914. 

A  good  short  summary  of  the  various 
attempts  at  legislation  on  the  subject  of 
convict  labor. 


Coolidge,  Mary  R.  Chinese  im- 
migration. New  York,  Holt, 
1909-  x>  531  p. 

Sketches    the    history    of    the    anti- 
Chinese  movement,  with  conclusions  in 
.  favor  of  non-restriction. 

Eaves,  Lucile.  A  history  of  Cali- 
fornia labor  legislation,  with  an 
introductory  sketch  of  the  San 
Francisco  labor  movement.  Berk- 
eley, The  university  press,  1910. 
(University  of  California,  pub- 
lications in  economics.)  xiv, 
461  p. 

Several  chapters  on  the  Chinese,  with 
special  reference  to  California. 

Fair-child,  Henry  Pratt.  Immi- 
gration; a  world  movement  and 
its  American  significance.  New 
York,  Macmillan,  1913.  xi,  455 

P- 

Historical  and  descriptive  account  of 
immigration  to  the  United  States,  with 
discussion  of  the  opportunities  and  re- 
sponsibilities to  which  immigration  gives 
rise. 

Geiser,  Karl  F.  Redemptioners 
and  indentured  servants  in  the 
colony  and  commonwealth  of 
Pennsylvania.  New  Haven, 
Conn.,  Tuttle,  Morehouse  and 
Taylor  co.,  n.  d.  (Supplement  to 
the  Yale  review,  v.  io>  no.  2, 
Aug.,  1901.)  128  p. 

Account  of  the  countries  whence  the 
early  immigrants  came,  the  conditions 
of  their  voyage,  and  their  mode  of  liv- 
ing in  this  country;  doing  for  the  north 
what  Ballagh's  book  (q.  v.)  does  for  the 
south. 

Gulick,  Sidney  L.  American  de- 
mocracy and  Asiatic  citizenship. 
New  York,  Scribner,  1918.  257  p. 
Plea  for  a  reasonable  immigration 
policy,  based  on  capacity  for  assimilation, 
and  applied  to  all  races  alike. 

Hancy,  Lewis  H.  (ed.).  Studies 
in  agricultural  economics  (Bui- 


504       PRINCIPLES  OF  LABOR  LEGISLATION 


letin  of  the  university  of  Texas, 
no.  298,  general  series  no.  33.) 
Austin,  Tex.,  University  of  Texas, 
1913.  132  p. 

Studies  of  farm  tenure  and  crop  mort- 
gage system  in  Texas,  cooperative  farm- 
ing, the  farm  labor  problem,  etc..  by 
members  of  the  Texas  applied  eco- 
nomics club. 

Hourwich,  Isaac  A.  Immigration 
and  labor;  the  economic  aspects 
of  European  immigration  to  the 
United  States.  New  York,  Put- 
nam, 1912.  xvii,  544  p. 

Presents  the  argument  against  re- 
striction. 

Hurd,  John  C.  The  law  of  free- 
dom and  bondage  in  the  United 
States.  Boston,  Little,  Brown, 
1858.  2  v. 

Deals  exclusively  with  the  legal  aspect 
of  the  question. 

Ingram,  John  K.  A  history  of 
slavery  and  serfdom.  London, 
Black,  1895.  xiv,  285  p. 

Deals  with  slavery  in  ancient  Greece 
and  Rome,  the  serfdom  of  the  middle 
ages,  the  African  slave  trade  and  slavery 
in  Russia  and  the  east. 

Jenks,  Jeremiah  W.,  and  Lauck, 
William  J.  The  immigration 
problem;  a  study  of  American 
immigration  conditions  and  needs. 
New  York,  Funk  and  Wagnalls, 

1913.  xxv,  551  p. 

Based  on  the  report  of  the  Immigra- 
tion commission  of  1911.  Advocates 
restriction. 

Kansas  City,  Mo.,  free  legal  aid 
bureau  of  the  board  of  pubic 
welfare.  Annual  reports. 

Legal  aid  society  of  New  York. 

Annual  reports.  Also  Legal  aid 
review,  quarterly. 
Motley,  James  M.  Apprentice- 
ship in  American  trade  unions. 
Baltimore,  Johns  Hopkins  press, 
*9°7-  (Johns  Hopkins  university 
studies  in  historical  and  political 
science,  v.  25:482-604.) 

Chapter  on  the  governmental  regula- 
tion of  apprenticeship. 

Parry,   Edward  A.     The  law  and 

the  poor.     New  York,   Button, 

1914.  xxi,  316  p. 

A  London  county  court  judge's  criti- 
cism of  the  law's  treatment  of  the  work- 
ing class;  with  a  chapter  on  imprison- 
ment for  debt. 

Ross,  Edward  Alsworth.    The  old 


world  in  the  new;  the  significance 
of  past  and  present  immigration 
to  the  American  people.  New 
York,  Century  co.,  1914.  327  p. 
Analyzes  in  turn  the  racial  character- 
istics of  each  immigrant  group. 

Smith,  Reginald  Heber.  Justice 
and  the  poor.  New  York,  Car- 
negie foundation  for  the  advance- 
ment of  teaching,  1919.  xiv,  271, 'p. 

Severe  arraignment  of  modern  civil 
and  criminal  procedure,  with  discussion 
of  remedial  agencies  and  legal  aid 
societies. 

Taylor,    Henry  C.     An  introduc- 
tion to  the  study  of  agricultural 
economics.       New    York,    Mac- 
millan,  1905.     viii,  327  p. 
Chapters  on  landlord  and  tenant. 

Terrell,  Mary  C.  Peonage  in  the 
United  States;  the  convict  lease 
system  and  the  chain  gangs. 
(Nineteenth  century  and  after, 
1907,  v.  62:306-322.) 

Partly  founded  on  the  report  of  the 
Georgia  state  prison  commission  for 
1005-1906;  deals  with  conditions  in  the 
south. 

Underbill,  H.  Clay.  A  treatise  on 
the  law  of  landlord  and  tenant, 
including  leases,  their  execution, 
surrender,  and  renewal,  the  par- 
ties thereto,  and  their  reciprocal 
rights  and  obligations,  the  various 
kinds  of  tenancy,  the,  use  and  pos- 
session of  the  premises,  the  char- 
acter of  rent  and  the  remedies  for 
its  recovery,  the  tenant's  right 
to  fixtures,  etc.,  etc.:  with  full 
references  to  the  latest  American 
and  English  cases  and  to  relevant 
American  and  English  statutes, 
both  ancient  and  modern.  Chi- 
cago, T.  H.  Flood,  1909.  2  v. 

Seeks  to  give  a  treatment  of  the  sub- 
ject in  the  light  of  modern  conditions 
and  especially  to  bring  out  more  clearly 
the  contractual  character  of  the  land- 
lord-tenant relationship. 

United  States.  Report  on  condi- 
tion of  woman  and  child  wage- 
earners  in  the  United  States. 
(Senate  doc.  645,  6ist  Cong.,  2d 
sess.)  v.  6,  "The  beginnings  of 
child  labor  legislation  in  certain 
states:  a  comparative  study," 
Elizabeth  Lewis  Otey.  Washing- 
ton, Govt.  print,  off.,  1910. 
Chapter  on  apprenticeship. 


BIBLIOGRAPHY 


505 


.......  Bureau  of  labor  statis- 

tics.      Bulletins.       Washington, 
Govt.  print,  off.,  1895- 

Issues  which  deal  with  various  phases 
of  individual  bargaining  are:    No.   38, 
containing  "Labor  conditions  in   Mex- 
ico," Walter  E.  Weyl;    No.  98,  contain- 
ing "Industrial  courts  of  France,  Ger- 
many, and  Switzerland,"  Helen  L.  Sum- 
ner;    No.  229,  "Wage  payment  legisla- 
tion in  the  United  States,"  Robert  G. 
Paterson. 
........  Monthly    labor    review. 

Washington,    Govt.    print,    off., 


Contains  frequent  articles  and  sum- 
maries of  reports  on  immigration,  con- 
vict labor,  wage  payment  legislation, 
and  related  topics. 

.......  Commissioner  of  labor. 


20th  Annual  report.  "Convict 
labor."  Washington,  Govt.  print. 
off.,  1905.  79|  P- 

The  fullest  and  most  recent  govern- 
ment publication  on  the  subject. 

.......  Department  of  justice. 

Annual  report  of  the  attorney- 
general.  Exhibit  17,  p.  207-215. 
Washington,  Govt.  print,  off., 
1907. 

Short  report  on  peonage  conditions  re- 
sulting from  an  investigation  by  the  as- 
sistant attorney-general. 

.......  Immigration     commis- 

sion. Reports.  (Senate  doc.  747, 
6ist  Cong.,  3d  sess.)  Washing- 
ton, Govt.  print,  off  .  ,  1  9  1  1  .  4  1  v. 


Contain  reports  on  contract  labor,  the 
padrone  system,  peonage,  and  immigrant 
banks. 

Walz,  W.  E.  Legal  aid  societies, 
their  nature,  history,  scope,  meth- 
ods, and  results.  (Green  bag, 
1914.  v.  26:101.) 

Deals  with  the  movement  in  the 
United  States. 

Ward,  H.  D.  Peonage  in  America. 
(Cosmopolitan,  1905,  v.  39423- 
430.)  . 

Summary  and  discussion  of  several 
peonage  cases  in  the  south,  including 
Clyatt  v.  U.  S. 

Wilson,  Henry.  History  of  the 
rise  and  fall  of  the  slave  power 
in  America.  Boston,  Houghton, 
Mifflin,  n.  d.  3  v. 

A  history  of  slavery  in  America  from 
colonial  times  to  the  passage  of  the 
fifteenth  amendment,  the  most  detailed 
part  being  concerned  with  the  Civil  War. 

Wolff,  Henry  W.  Cooperation  in 
agriculture.  London,  King,  1912. 
x,  378  p. 

Describes  in  detail  the  methods  of  co- 
operation used  in  different  countries. 
The  author  is  a  leading  authority  on 
cooperation. 

Wood ,  Wa  I ter  J .  The  place  of  the 
public  defender  in  the  adminis- 
tration of  justice.  Oakland,  Cal., 
1914.  32  p. 

Address  by  the  public  defender  of  Los 
Angeles  county  before  the  California 
bar  association. 


III.    COLLECTIVE  BARGAINING 


American    federation    of    labor. 

History,  encyclopedia,  reference 
book  of  the  American  federation 
of  labor.  Washington,  American 
federation  of  labor,  1919.  515,  v  p. 

Official  compilation  of  all  important 
actions  from  1881  to  1918. 

Reports  of  the  proceedings. 

Annually,  1881- 

Record'of  official  action  taken  by  the 
leading  representative  organization  of 
American  wage-earners.  Data  on  unions 
affiliated,  membership,  and  the  like. 

Australia,  Bureau  of  census  and 
statistics,  Labour  and  indus- 
trial branch.  Labour  bulletin. 
Melbourne,  quarterly. 

Contains  summaries  of  the  cpmmon- 
wealth  conciliation  and  arbitration  acts 
and  the  records  of  proceedings. 


British    trades    union   congress. 

Reports.  Published  by  the  au- 
thority of  the  Congress  and  the 
joint  committee.  Manchester, 
Cooperative  printing  society,  an- 
nually. 

Express  the  attitude  of  English  labor. 

Broad  head,  Henry.  State  regula- 
tion of  labour  and  labour  dis- 
putes in  New  Zealand;  a  de- 
scription and  a  criticism.  Christ- 
church,  N.  Z.,  Whitcombe  and 
Tombs,  1908.  230  p. 

Written  by  the  secretary  of  an  em- 
ployers' association,  who  has  been  a 
member  of  a  conciliation  board.  Op- 
posed to  the  arbitration  act. 
Bryan,  J.  W.  The  development 
of  the  English  law  of  conspiracy. 


506       PRINCIPLES  OF  LABOR  LEGISLATION 


(Johns  Hopkins  university  studies 
in  historical  and  political  science, 
v.  27:133-161.)  Baltimore,  Johns 
Hopkins  press,  1909. 

History  of  the  law  of  conspiracy  in 
England.  Only  the  last  chapter  deals 
especially  with  the  law  of  conspiracy  as 
developed  in  labor  cases. 

Proper  bounds  for  the  use 

of  the  injunction  in  labor  dis- 
putes. (Annals  of  the  American 
academy  of  political  and  social 
science,  v.  36:288-301.)  Phila- 
delphia, 1910. 

A  lawyer's  criticism  of  the  law  of  con- 
spiracy as  developed  in  American  cases. 

Clark,  John  Bates.  Is  authorita- 
tive arbitration  inevitable?  (Po- 
litical science  quarterly,  Dec., 


1902,  v.   17:553-567:) 
A  closely  reasoned   dis 


hscussion,  going 
down  to  the  first  principles  of  wages, 
and  concluding  that  the  unsatisfactori- 
ness  of  present  conditions  calls  for  the 
establishment  of  some  kind  of  wage 
courts. 

Clark,  Victor  S.  The  labour 
movement  in  Australasia;  a 
study  in  social  democracy.  New 
York,  Holt,  1906.  xi,  319  p. 

Principally  concerned  with  labor  pol- 
itics. Chapters  on  minimum  wage 
boards  and  compulsory  arbitration, 
which  are  criticized  dispassionately,  the 
latter  also  from  a  legal  standpoint. 

Cohen,  Julius  Henry.     Law  and 

order  in  industry;  five  years'  ex- 
perience. New  York,  Macmil- 
lan,  1916.  292  p. 

Results  of  voluntary  arbitration  under 
the  protocol  in  the  New  York  cloak  and 
suit  industry. 

Commons,  John  R.,  and  Gil- 
more,  Eugene  A.  (ed.).  A  docu- 
mentary history  of  American 
industrial  society,  v.  3,  4,  and 
supplement.  Cleveland,  Arthur 
H.  Clark,  1910.  10  v. 

Reprints  in  full  the  records  of  the 
labor  cases  in  the  United  States  prior  to 
Commonwealth  v.  Hunt  (1842). 

Cooke,  F.  H.  The  law  of  combina- 
tions, monopolies,  and  labor 
unions.  Chicago,  Callaghan, 
1908.  Ixix,  466  p. 

The  law  applicable  to  labor  unions. 
Argues  in  favor  of  a  liberalization  of 
trade  union  law. 

Davies,  Emil.  The  collectivist 
state  in  the  making.  London, 
Bell,  1914.  xviii,  267  p.  "Col- 


lectivism and  the  labor  problem," 
p.  190-202. 

Discusses  participation  of  government 
employees  in  determining  conditions  of 
labor. 

Dixon,  Frank  H.  Public  regula- 
tion of  railway  wages.  (American 
economic  review,  March,  1915, 
v.  5,  no.  I,  supp.  :245~269.) 

American  experience  under  mediation 
and  arbitration. 

Gilman,  Nicolas  P.  Methods  of 
industrial  peace.  Boston,  Hough- 
ton,  Mifm'n,  1904.  x,  436  p. 

Written  from  an  unbiased  and  mod- 
erate point  of  view,  and  illustrated  with 
many  examples  drawn  from  different 
countries. 

Gompers,  Samuel.  And  yet  they 
would  "wish"  it  on  us.  "  (Amer- 
ican federationist,  1915,  v.  22: 

333-337-) 

Criticizes  the  industrial  arbitration 
court  of  New  South  Wales  for  its  action 
in  reducing  wages  owing  to  the  war. 

Australasian  labor  regu- 
lating schemes.  (American  fed- 
erationist, 1915,  v.  22:253-263.) 

Expresses  the  view  that  the  arbitra- 
tion courts  and  wages  boards  constitute 
a  "judicial  despotism." 

Great  Britain.     Board  of  trade. 

Reports  on  proceedings  under  the 
conciliation  (trade  disputes)  act, 
1896.  London,  1897- 

Short  survey  of  labor  conditions 
throughout  the  year  with  special  refer- 
ence to  disputes  and  their  settlement;  ap- 
pendices giving  tabular  statements  and 
detailed  summaries  of  cases  decided. 

Home  office.     Report  to 

the  secretary  of  state  for  the  home 
department  on  the  wages  boards 
and  industrial  conciliation  and 
arbitration  acts  of  Australia  and 
New  Zealand,  by  Ernest  Aves. 
London,  Darling,  1908.  226  p. 

A  detailed  authoritative  report  made 
from  personal  observation. 

Labour     department. 

Report  on  contracts  given  out 
by  public  authorities  to  associa- 
tions of  workmen,  by  D.  F. 
Schloss.  (Parliamentary  papers 
of  1896,  v.  80  [C.  8233].)  Lon- 
don, Eyre  and  Spottiswoode, 
1896.  346  p. 

Exhaustive  report  on  conditions  in 
Great  Britain,  New  Zealand.  Victoria, 
Russia,  France,  and  Italy. 

Hammond,  Matthew  B.     British 


BIBLIOGRAPHY 


507 


labor  conditions  and  legislation 
during  the  war.  New  York,  Car- 
negie endowment  for  international 
peace,  1919.  335  p. 

Includes  study  of  war-time  anti-strike 
legislation  and  its  results. 

Higgins,  Henry  Bournes.    A  new 

province  for  law  and  order.  (Har- 
vard law  review,  I.  Nov.,  1915, 
v.  29:13-39;  II.  Jan.,  1919,  v.  32: 
189-217.) 

Excellent  summaries  of  the  principles 
and  operation  of  the  Australian  common- 
wealth arbitration  act,  by  the  president 
of  the  court  which  administers  it. 

Ken  n  ad  ay,  Paul.  Victorian  wage 
boards  and  the  New  Zealand  con- 
ciliation-arbitration act.  (Yale 
review,  1911,  v.  19:32-54.) 

Crisp  account  of  the  results  attained 
in  Victoria  and  New  Zealand,  considered 
with  reference  to  American  conditions. 

King,   W.    L.    Mackenzie.     How 

Canada  prevents  strikes. 
(World's  work,  1913,  v.  26:438- 

Short  explanation  of  the  Canadian 
industrial  disputes  investigation  act,  its 
purpose  and  result,  by  the  author  of  the 
act. 

Knoop,  Douglas.  Industrial  con- 
ciliation and  arbitration.  London, 
King,  1905.  xxiv,  241  p. 

Mainly  a  study  of  voluntary  methods 
which  the  author  advocates  as  against 
the  Australasian  compulsory  system. 

La  idler,  Harry  W.  Boycotts  and 
the  labor  struggle.  New  York, 
Lane,  1914.  488  p. 

Discusses  methods  of  boycotting,  and 
the  principles  of  law  applied  in  boycott 
cases. 

Le  Rossignol,  J.  E.,  and  Stewart, 
W.  D.  Compulsory  arbitration 
in  New  Zealand.  (Quarterly 
journal  of  economics,  1910,  v. 
24:660-712.) 

Summary  of  origins,  working,  results, 
and  criticisms.  Account  of  strikes  lead- 
ing to  amendment  of  the  act  in  1908. 

Lloyd,  Henry  D.  A  country  with- 
out strikes;  a  visit  to  the  com- 
pulsory arbitration  court  of  New 
Zealand.  New  York,  Doubleday, 
Page,  1900.  xiv,  183  p. 

Enthusiastic  appreciation  of  the  New 
Zealand  system  in  its  early  days. 

Martin,  W.  A.     A  treatise  on  the 
law  of  labor  unions.   Washington, 
Byrne,  1910.     xxv,  649  p. 
"Trade  union  law  as  applied  by  conser- 


vative courts.  Gives  sample  forms  of 
bills  of  complaint  and  injunctions. 
Moses,  Milton.  Compulsory  arbi- 
tration in  Great  Britain  during 
the  war.  (Journal  of  political 
economy,  Nov.,  1918,  v.  26:882- 
900.) 

Description,  with  reasons,  of  the  fail- 
ure of  anti-strike  legislation  in  essential 
war  industries. 

Mote,  Carl  H.  Industrial  arbitra- 
tion. Indianapolis,  Bobbs-Mer- 
rill,  1916.  351,  xlv  p. 

Study  of  existing  natural  and  political 
agencies  in  various  countries  for  avoiding 
strikes  and  lockouts. 

New  South  Wales.  The  official 
year  book  of  New  South  Wales. 
Sydney,  annually. 

Summarizes  developments  of  state  in- 
tervention in  industry  in  New  South 
Wales. 

Department    of    labour 

and    industry.      Industrial   ga- 
zette.    Sydney,  monthly 
Contains  awards  in  force. 

New  Zealand.  The  New  Zealand 
official  year  book.  Wellington, 
annually. 

Contains  accounts  of  the  arbitration 
court  and  of  the  conciliation  councils. 

Department  of   labour. 

Awards,  recommendations,  agree- 
ments, etc.,  made  under  the  in- 
dustrial conciliation  and  arbitra- 
tion act,  New  Zealand.  Welling- 
ton, annually. 

Designed  to  "serve  somewhat  the  pur- 
pose which  the  law  reports  fulfi}  in  re- 
gard to  other  branches  of  legal^admin- 
istration." 

Pigou,  Arthur  Cecil.  Principles 
and  methods  of  industrial  peace. 
New  York,  Macmillan,  1905. 
xx,  240  p. 

Desirability  of  industrial  peace,  anal- 
ysis of  wage  problems,  and  methods  of 
amicable  settlement. 

Price,  Langford  L.  Industrial 
peace,  its  advantages,  methods, 
and  difficulties;  a  report  of  an 
inquiry  made  for  the  Toynbee 
trustees.  London,  Macmillan, 
1887.  xxxi,  127  p. 

One  of  the  first  attempts  to  sound  the 
possibilities  of  arbitration  and  concilia- 
tion. Based  on  an  investigation  of  the 
coal  and  iron  industries  in  the  north  of 
England. 

Reeves,  W.  Pember.  State  ex- 
periments in  Australia  and  New 


5o8       PRINCIPLES  OP  LABOR  LEGISLATION 


Zealand.     London,   Grant  Rich- 
ards, 1902.     2  v. 

Account  of  the  New  Zealand  arbitra- 
tion act  and  its  working,  by  the  author 
of  the  act. 

St.  Ledger,  A.  Australian  social- 
ism; an  historical  sketch  of  its 
origin  and  developments.  Lon- 
don, Macmillan,  1909.  xv,  365  p. 

And -socialist;  favors  wages  boards 
but  considers  that  compulsory  arbitra- 
tion has  proved  a  failure. 

Seager,  Henry  R.  The  legal 
status  of  trade  unions  in  the 
United  Kingdom,  with  conclu- 
sions applicable  to  the  United 
States.  (Political  science  quar- 
terly, Dec.,  1907,  v.  22:611-629.) 
Reasons  for  adopting  in  the  United 
States  legislation  comparable  to  the  trade 
disputes  act  of  Great  Britain. 

Siegfried,  Andre.  Democracy  in 
New  Zealand.  Tr.  E.  V.  Burns. 
London,  Bell,  1914.  xxiii,  398  p. 
Brilliant  study  of  political,  social,  and 
industrial  life  in  New  Zealand;  considers 
the  arbitration  system  at  least  tempo- 
rarily successful. 

United  States.  Bureau  of  labor 
statistics.  Bulletins.  Washing- 
ton, Govt.  print,  off.,  1895- 

The  following  issues  present  particu- 
larly important  articles  dealing  with 
collective  bargaining:  No.  60  contains 
"Governmental  industrial  arbitration," 
L.  W.  Hatch;  No.  98  gives  a  series  of 
reports  on  mediation  and  arbitration  in 
America  and  abroad;  No.  124,  ''Con- 
ciliation and  arbitration  in  the  building 
trades  of  Greater  New  York,"  Charles 
H.  Winslow;  Np.  133,  "Report  of  the 
industrial  council  of  the  British  board 
of  trade  on  its  inquiry  into  industrial 
agreements";  No.  144,  "Industrial  court 
of  the  cloak,  suit,  and  skirt  industry  of 
New  York  City,"  Charles  H.  Winslow; 
No.  I.1S,  "Conciliation,  arbitration,  and 
sanitation  in  the  dress  and  waist  indus 
try  of  New  York  City,"  Charles  H.  Wins- 
low;  No.  191,  "Collective  bargaining  in 
the  anthracite  coal  industry,"  Edgar 
Sydenstricker;  No.  198,  "Collective 
agreements  in  the  men's  clothing  indus- 
try," Charles  H.  Winslow;  No.  233. 
"Operation  of  the  industrial  disputes 
investigation  act  of  Canada,"  Benjamin 
M.  Squires;  No.  237,  "Industrial  un- 
rest in  Great  Britain":  No.  255,  "Joint 
industrial  councils  in  Great  Britain." 

Monthly    labor    review. 

Washington,  Goyt.  print,  off . ,  1 9 1 5- 

Gives  current  information  on  trade 
union  organizations,  statistics  of  strikes 
and  lockouts,  operation  of  mediation  and 
arbitration  boards,  and  kindred  matters. 

Industrial    commission. 


Reports  on  labor  organizations, 
labor  disputes  and  arbitration, 
and  on  railway  labor,  v.  17,  pt. 
Ill,  p.  325-546.  Washington, 
Govt.  print,  off.,  1901. 

National  and  local  agreements  in 
many  trades;  the  federal  and  state  laws 
on  arbitration,  and  methods  of  arbitra- 
tion in  foreign  countries. 

Victoria.  Victorian  year  book. 
Melbourne,  annually. 

Gives  summary  of  the  law  and  lists  of 
existing  or  authorized  wages  boards. 

Watney,  Charles,  and  Little, 
James  A.  Industrial  warfare; 
the  aims  and  claims  of  capital 
and  labour.  London,  J.  Murray, 
1912.  x,  353  p. 

Comprehensive  picture  of  unrest  in 
various  fields  of  British  labor. 

Webb,  Sidney.  The  restoration  of 
trade  union  conditions.  New 
York,  Huebsch,  1917.  109  p. 

Analysis  of  the  network  of  trade  union 
rules  abrogated  during  the  war,  danger 
of  a  sham  restoration,  and  plan  for  a 
constructive  policy. 

Webb,  Sidney,  and  Webb,  Bea- 
trice. Industrial  democracy. 
London,  Longmans,  Green,  1902. 
Ixi,  927  p.  2  v.  in  one. 

Analyzes  trade  union  structure,  func- 
tion, and  theory.  The  classic  work  on 
collective  bargaining. 
The  history  of  trade  union- 
ism. London,  Longmans,  Green, 
1911.  Ixviii,  558  p. 

A  narrative  of  the  facts  of  trade  union 
history  in  England,  forming  the  com- 
plement to  "Industrial  democracy."  A 
new  introductory  chapter  recounts  the 
story  of  the  Osborne  judgment  and  gives 
a  general  survey  of  trade  unionism  in  19 10. 

We  in  stock,  Harris.  The  best 
way  to  minimize  strikes  and  lock- 
outs. (Transactions  of  the  Com- 
monwealth club  of  California, 
v.  5:43-52.)  San  Francisco,  1911. 
.  Argues  that  compulsory  arbitration  is 
unsuited  to  American  conditions,  that 
voluntary  arbitration  has  hitherto  failed, 
and  that  the  plan  of  equal  representation 
of  employers  and  employed  on  an  arbi- 
tration board  is  likely  to  be  more  success- 
ful than  either. 

Witte,  Edwin  E.  The  Clayton  bill 
and  organized  labor.  (Survey, 
1914,  v.  32:360.) 

The  modifications  in  trade  union  law 
made  by  the  Clayton  antitrust  act. 

See  also  under  The  minimum  wage: 
Collier,  Hammond,  Webb. 


BIBLIOGRAPHY 


509 


IV.     THE   MINIMUM   WAGE 


American  association  for  labor 
legislation.  American  labor  leg- 
islation review.  Quarterly,  1911- 
The  following  numbers  contain  mate- 
rial on  the  minimum  wage:  Feb.,  1913, 
v.  3:  81-115.  address  and  discussion; 
Dec.,  1918,  v.  8:  355-364,  summary  of 
minimum  wage  laws  and  commission 
awards  in  the  United  States. 

Andrews,  Irene  Osgood.  Mini- 
mum wage  legislation.  Albany, 
Lyon,  1914.  219  p.  (Printed  also 
as  Appendix  III  of  the  Third 
report  of  the  New  York  state 
factory  investigating  commission. 
Albany,  1914.  p.  169-385.) 

History,  text,  analysis,  and  operation 
of  American  and  foreign  laws;  decision 
of  Oregon  supreme  court  upholding  the 
state  law. 

........  The  relation   of  irregular 

employment  to  the  living  wage 
for  women.  (American  labor 
legislation  review,  June,  1915, 
v.  5:287-418.  Printed  also  as 
Appendix  X  of  the  Fourth  report 
of  the  New  York  state  factory 
investigating  commission.  Al- 

bany, 1915.     p.  497-635.) 

Need  of  considering  income  losses  of 
women  workers  through  unemployment 
and  underemployment  in  making  mini- 
mum wage  awards;  table  of  minimum 
wage  awards  to  January  i,  1915. 

Andrews,  Irene  Osgood,  and 
Hobbs,  Margarett  A.  Eco- 
nomic effects  of  the  war  upon 
women  and  children  in  Great 
Britain.  New  York,  Carnegie 
endowment  for  international 
peace,  1918.  190  p. 

Discusses  war-time  flow  of  women  into 
industry,  hours  of  labor,  wages,  safety 
and  health,  and  related  problems. 

Brown,  Rome  G.  The  minimum 
wage.  Review  publishing  co., 
Minneapolis,  1914.  xv,  98  p. 

Theoretical  arguments  against  mini- 
mum wage  legislation;  alleged  uncon- 
stitutionally of  the  Minnesota  statute. 

California,  Industrial  welfare 
commission.  Biennial  reports. 


Cost  of  living  studies,  reports  of  wage 
boards,   investigations  of  working  con- 
ditions of  women  and  children  in  various 
industries,  orders  of  the  commission. 
The  Case  for  the  minimum  wage. 


(Survey,  Feb.  6,  1915,  v.  33:487- 
515,  521-524-) 

Symposium,  containing  articles  on  the 
need,  extent,  and  operation  of  minimum 
wage  legislation  in  this  country  and 
abroad  by  well-known  experts,  including 
Florence  Kelley,  Louis  D.  Brandeis, 
M.  B.  Hammond,  John  A.  Hobson, 
Howard  B.  Woolston,  N.  I.  Stone,  and 
Esther  Packard. 

Clark,  John  Bates.  The  minimum 
wage.  (Atlantic  monthly,  Sept., 
1913,  p.  289-297.) 

Theoretical  discussion  setting  forth 
the  probable  operation  of  the  legal 
minimum  wage,  with  particular  em- 
phasis upon  those  who  might  be  thrown 
out  of  work  by  such  laws. 

Collier,  Paul  Stanley.  Minimum 
wage  legislation  in  Australia. 
(Appendix  VIII  of  Fourth  report 
of  the  New  York  state  factory 
investigating  commission,  v.  4: 
1845-2268.  Albany,  1915.  Also 
reprint.) 

Exhaustive  study  of  the  operation  and 
effects  of  the  various  methods  of  wage 
regulation  in  the  separate  Australian 
states  and  in  the  commonwealth. 

Frankfurter,  Felix,  and  Gold- 
mark,  Josephine.  Brief  for  de- 
fendants in  error  upon  reargu- 
ment  in  the  case  of  Stettler  v. 
O'Hara  et  al.f  constituting  the 
industrial  welfare  commission. 
Oregon,  1916.  783  p. 

Revised  and  enlarged  edition  of  orig- 
inal brief  prepared  by  Louis  D.  Brandeis. 
Selection  of  extracts  favorable  to  the 
legal  minimum  wage;  sets  forth  evil  of 
low  wages,  benefits  of  an  adequate  wage, 
benefits  of  the  legal  minimum  wage,  and 
analogy  with  other  labor  legislation. 

Hammond,  Matthew  B.  Judicial 
interpretation  of  the  minimum 
wage  in  Australia.  (American 
economic  review,  June,  1913,  v. 
3:259-286.) 

Analysis  of  the  fundamental  prin- 
ciples underlying  decisions  given  under 
the  laws  establishing  minimum  wages  in 
Australasia;  based  upon  studies  made 
during  a  personal  visit  to  those  countries 
in  the  winter  of  1911-1912. 

The    minimum    wage    in 

Great  Britain  and  Australia. 
(Annals  American  academy  of 
political  and  social  science,  July, 
1913,  v.  48:22-36.) 


5io       PRINCIPLES  OP  LABOR  LEGISLATION 


Results  secured  under  the  Victorian 
and  British  wage  board  laws,  based 
upon  personal  investigations. 

Wages  boards  in  Australia. 

I.  Victoria.  II.  Boards  outside 
Victoria.  III.  Organization  and 
procedure.  IV.  Social  and  eco- 
nomic results  of  wages  boards. 
(Quarterly  journal  of  economics, 
1914,  v.  29:98-148,  326-361, 


Contains  a  mass  of  detail  concerning 
the  wage  boards  and  their  economic 
effects. 

Holcombe,  Arthur  N.  The  legal 
minimum  wage  in  the  United 
States.  (American  economic  re- 
view, 1912,  v.  2:21-37.) 

Foreign  systems  of  wage  regulation, 
constitutional  outlook  in  America,  eco- 
nomic need  of  minimum  wage  legislation, 
and  probable  effect  upon  the  relation 
between  employer  and  employees. 

Lippman,  Walter.  The  campaign 
against  sweating.  (New  repub- 
lic, March  27,  1915,  v.  2,  no.  21, 
part  2,  8  p.) 

Popular,  forceful  article  on  the  need 
for  minimum  wage  legislation,  j 

Massachusetts.  Commission  on 
minimum  wage  boards.  Re- 
port. Boston,  1912.  326  p. 

The  report  which  led  to  the  passage  of 
the  first  American  minimum  wage  law; 
investigation  of  wages  of  women  and 
minors  in  Massachusetts  candy  fac- 
tories, laundries,  and  retail  stores;  need 
of  legislation. 

Minimum  wage  com- 
mission. Annual  reports.  Bos- 
ton, 1914- 

Contain  investigations  of  women's 
wages,  and  operation  of  wage  boards  in 
various  industries. 

Merchants  and  manufacturers 
of  Massachusetts.  Executive 
committee.  The  minimum  wage, 
a  failing  experiment;  together 
with  some  sidelights  on  the  Mas- 
sachusetts experience.  Boston, 
1916.  58  p. 

Effort  to  prove  that  to  encpurage  the 
minimum  wage  law  is  to  "sign  a  pre- 
liminary death  warrant  for  many  Massa- 
chusetts industries." 

N  earing,  Scott.  Wages  in  the 
United  States;  1908-1910.  New 
York,  Macmillan,  191 1.  viii,  220  p. 
First  American  study  popularizing 
wage  data.  Concludes  that  average 
wages  of  adult  males  were  in  neighbor- 
hood of  $600  a  year. 


New  York.  State  factory  investi- 
gating commission.  Fourth  re- 
port. Albany,  1915. 

Wages  in  New  York  state  in  mercan- 
tile establishments;  in  the  shirt,  paper 
box,  confectionery,  and  button  indus- 
tries; in  New  York  city  in  the  millinery 
trades;  relation  of  irregular  employment 
to  the  living  wage  for  women;  cost  of 
living;  living  conditions;  opinions  on 
minimum  wage  legislation. 

Oregon.  Industrial  welfare  com- 
mission. Biennial  reports.  Sa- 
lem, 1915- 

Include  orders  issued  by  the  com- 
mission. 

Persons,  Charles  E.  Estimates  of 
a  living  wage  for  female  workers. 
(Quarterly  publications  of  the 
American  statistical  association, 
June,  1915,  v.  14:567-577.) 

Comparison  of  nine  studies,  and  con- 
clusion that  58.50  is  a  working  basis. 

Raynaud,  Barthelemy.  Vers  le 
salaire  minimum:  e"tude  d'£cono- 
mie  et  de  legislation  industrielles. 
Paris,  Librairie  de  la  socie"te~  du 
recueil  Sirey,  1913. 

Detailed  theoretical  and  historical 
study. 

Ryan,  John  Augustine.  A  living 
wage;  its  ethical  and  economic 
aspects.  New  York,  Macmillan, 
1906.  346  p. 

Emphasizes  especially  the  ethical  and 
economic  bases  ahd  the  present  need  for 
minimum  wage  legislation  in  the  United 
States. 

Seager,  Henry  Rogers.  The  the- 
ory of  the  minimum  wage. 
(American  labor  legislation  re- 
view, Feb.,  1913,  v.  3:81-91.) 

A  statement  of  the  underlying  theory 
of  minimum  wage  legislation  together 
with  its  probable  results  upon  the  or- 
ganization of  industry  and  upon  other 
problems  of  labor  legislation;  contains 
discussion  by  John  R.  Commons,  Paul 
U.  Kellogg.  M.  B.  Hammond,  George  W. 
Anderson,  Henry  Abrahams,  G.  W. 
Noyes,  Edward  F.  McSweeney,  George 
G.  Groat,  and  Emily  Green  Balch. 

Smith,  Constance.  The  case  for 
wages  boards.  National  anti- 
sweating  league,  London,  1908. 

94  P- 

Principal  features  of  sweating  system 
in  England  and  legislative  action  to 
remedy  it. 

Snowden,  Philip.  The  living 
wage.  London,  Hodder  and 
Stoughton,  1913.  189  p. 

Discussion  of  the  benefits  of  the  legal 


BIBLIOGRAPHY 


minimum  wage,  including  experience 
gained  under  the  British  trade  boards 
act  since  1910. 

Streightoff,  Frank  Hatch.  Dis- 
tribution of  incomes  in  the 
United  States.  (Columbia  uni- 
versity studies  in  history,  eco- 
nomics, and  public  law,  v.  52, 
no.  2.)  New  York,  Longmans, 
Green,  1912.  171  p. 

Analyzes  available  data  and  argues 
for  better  information.  Estimates  that 
at  least  half  the  males  aged  sixteen  or 
over  in  gainful  occupations  are  earning 
less  than  $626  a  year. 

Tawney,  Richard  H.  The  estab- 
lishment of  minimum  rates  in  the 
chain-making  industry  under  the 
trade  boards  act  of  1909.  London, 
Bell,  1914.  157  p. 

Intensive  study  of  conditions  m  the 
English  chain-making  industry  before 
and  after  the  fixing  of  minimum  rates 
by  a  trade  board. 

The  establishment  of  mini- 
mum rates  in  the  tailoring  indus- 
try under  the  trade  boards  act  of 
1909.  London,  Bell,  1915,  274  p. 

Application  of  act  to  140,000  workers, 
advance  in  wages,  effects  on  employment 
and  on  trade  unionism,  administrative 
difficulties,  especially  in  case  of  home 
workers. 

United  States.  Bureau  of  labor 
statistics.  Bulletins.  Washing- 
ton, Govt.  print,  off.,  1895- 


Numbers  dealing  especially  with  the 
minimum  wage  include:  No.  167, 
"Minimum  wage  legislation  in  the 
United  States  and  foreign  countries," 
C.  H.  Verrill;  No.  176,  "Effect  of  mini- 
mum wage  determinations  in  Oregon." 
Marie  L.  Obenauer,  Bertha  von  der 
Nienburg. 

Monthly      labor      review. 

Washington,    Govt.    print,    off., 
I9I.5- 

Gives  reports  of  cost  of  living  and  wage 
investigations,  and  orders  of  the  com- 
missions. 

Woman  in  industry  ser- 
vice. Bulletins.  Washington, 
Govt.  print,  off.,  1919- 

Contain  studies  of  women's  wages  and 
working  conditions.  No.  4,  "  Wages  (of 
candy  makers  in  Philadelphia  in  I9I9-" 

Washington.  Industrial  welfare 
commission.  Biennial  reports. 
Olympia,  1915- 

Operation  of  the  minimum  wage  law, 
emphasizing  effect  on  wages  and  effi- 
ciency. 

Webb,  Sidney.  The  economic 
theory  of  a  legal  minimum  wage. 
(Journal  of  political  economy, 
1912,  v.  20:973-998.) 

Summary  of  the  theoretical  and  prac- 
tical arguments  in  favor  of  the  minimum 
wage,  illustrated  by  experience  under 
existing  laws;  comprehensive  statement 
in  favor  of  minimum  wage  legislation. 

See  also  under  Collective  bargain- 
ing: Great  Britain,  Kennaday. 


V.     HOURS  OF  LABOR 


American  association  for  labor 
legislation.  American  labor  leg- 
islation review.  Quarterly,  1911- 
Issues  presenting  valuable  articles  and 
data  on  hours  include:  Dec.,  1912,  v.  2: 
517-533.  material  on  need  of  one  day  s 
rest  in  seven;  March,  1914,  v.  4'  105- 
137,  papers  and  discussion  on  rest  periods 
in  continuous  industries;  Dec.,  1914,  v. 
4:  611-630,  operation  of  one  day's  rest 
in  seven  laws,  and  standard  bill;  March, 
1917,  v.  7:  139-181,  papers  and  discus- 
sion on  rest  periods  in  continuous  indus- 
tries; Dec.,  1918,  v.  8:  339-354.  sum- 
mary of  hour  legislation  for  women  m 
the  United  States;  Sept.,  1919.  v.  9: 
529-538,  draft  conventions  and  recom- 
mendations adopted  by  the  International 
Iab9r  conference  of  the  League  of 
nations. 

Ballard,  S.  Thrustpn.  Eight-hour 
shifts  in  the  milling  industry. 
(American  labor  legislation  re- 


view,   March,    1914,    v.    4:117- 
120.) 

Gives  experience  of  one  industry  using 
eight-hour  shifts. 

Bogardus,  E.  S.  The  relation  of 
fatigue  to  industrial  accidents. 
(American  journal  of  sociology, 
1911-12,  v.  17:206-222,  351-374. 
512—539.) 

Study  of  the  effect  of  fatigue  on  the 
system  and  an  attempt  to  correlate  work- 
ing hours  and  accident  frequency. 

Brandeis,  Louis  D.,  and  Gold- 
mark,  Josephine.  Brief  in  the 
case  of  Ritchie  v.  Wayman.  Illi- 
nois, 1909.  610  p. 

The  dangers  of  long  hours,  benefits  of 
short  hours,  desirability  of  uniformity, 
reasonableness   of  the  ten-hour  law  for 
women. 
Brief  in  the  case  of  People 


PRINCIPLES  OF  LABOR  LEGISLATION 


512 

v.  Charles  Schweinler  press. 
New  York,  1915.  529  P- 

Argues  the  constitutionality  of  pro- 
hibiting night  work  for  women. 

Commons,  John  R.,  and  An- 
drews, John  B.  Documentary 
history  of  American  industrial 
society.  Cleveland,  Clark,  1919. 

V.  8:81-210,  contains  documents  il- 
lustrative of  the  movement  to  decrease 
hours  of  labor;  v.  9:  24-33,  the  growth 
of  the  philosophy  of  hour  limitation. 

Fitch,  John  A.  Sunday  and  rest 
day  labor  laws  in  the  United 
States.  (New  York  Department 
of  labor  bulletin  no.  45:377-403- 
Albany,  1910.) 

A  review  of  court  decisions  on  Sunday 
rest  day  laws  showing  that  their  justi- 
fication by  virtue  of  the  police  power  ap- 
plies even  more  clearly  to  the  one  day 
of  rest  in  seven  laws. 

Judicial  basis  for  legisla- 
tive restriction  of  hours  of  labor 
of  adult  males.  (New  York  De- 
partment of  labor  bulletin  no. 
46:90-121.  Albany,  1911.) 
Critical  review  of  court  decisions. 

The   steel   workers.      The 

Pittsburgh  survey.  New  York, 
Charities  publication  committee, 
1911.  380  p. 

Treats  of  the  results  of  a  seven-day 
week  and  twelve-hour  day. 

Frankfurter,  Felix,  and  Gold- 
mark,  Josephine.  Brief  for  de- 
fendant in  error  in  the  case  of 
Bunting  v.  Oregon.  Oregon, 
1915.  2v.  984  p. 

Successful  argument,  based  on  eco- 
nomic data,  for  constitutionality  of  Ore- 
gon ten-hour  law  for  men.  (&  J 
Freund,  Ernst.  Constitutional 
aspects  of  hour  legislation  for 
men.  (American  labor  legisla- 
tion review,  March,  1914,  v.  4: 
129-132.) 

Suggestion  of  possible  principles  on 
which  to  base  hour  legislation. 

Constitutional    limitations 

and  legislation.  (Proceedings  of 
third  annual  meeting  of  the 
American  association  for  labor 
legislation,  p.  51-71.  New  York, 
1910.)  ' 

Critical  discussion  of  development  of 
theory  of  constitutionality  of  hour  legis- 
lation. 

The  constitutional  aspects 

of  the  protection  of  women  in  in- 


dustry. (Publications  Academy 
of  political  science,  1910,  v.  i: 
162-184.) 

Garretson,  Austin  B.  Long  hours 
in  railroading.  (American  labor 
legislation  review,  March,  1914, 
v.  4:120-128.) 

Personal  experiences  and  statistics  of 
hours  and  casualties. 

Goldmark,  Josephine.  Fatigue 
and  efficiency;  a  study  in  indus- 
try. New  York,  Charities  publi- 
cation committee,  1912.  xvii, 

591  P- 

Shpws  necessity  for  regulation  of 
working  hours  to  prevent  overfatigue 
and  exhaustion. 

Handbook  of  laws  regulat- 
ing women's  hours  of  labor,  and 
a  standard  law  embodying  the 
best  provisions  of  the  most  ef- 
fective statutes  now  in  force. 
New  York,  National  consumers' 
league,  1913.  56  p. 

The    inalienable    right    to 


rest.  (Survey,  May  24,  1913, 
v.  30:264-266.) 

Comment  on  favorable  decision  of 
Mississippi  supreme  court  upholding 
state's  ten-hour  law  for  factory  workers. 

U.  S.  supreme  court  and 

the  eight-hour  day.  (Survey, 
Mar.  20,  1915,  v.  33:677-678.) 

Brief  statement  of  recent  court  deci- 
sions. 

Great    Britain.       Home    office. 

Report  of  departmental  com- 
mittee on  the  night  employment 
of  male  young  persons  in  factories 
and  workshops.  Minutes  of  evi- 
dence and  appendices.  London, 
Wyman,  1913.  289  p. 

Report  on  the  acts  for  the 

regulation  of  the  hours  of  em- 
ployment in  shops  in  Australia 
and  New  Zealand,  by  Ernest 
Aves.  1908.  218  p. 

The  advantages  and  risks  of  limiting 
hours  of  labor  compared;  decision  in 
favor  of  limitation  based  on  increased 
efficiency  of  service. 

.  Ministry  of  munitions. 

British  health  of  munition  work- 
ers' committee  memoranda.  Lon- 
don, 1915,  1916.  (Also  reprints 
by  United  States  Bureau  of  labor 
statistics,  Bulletins  No.  221,  222, 
223,  230,  249.) 


BIBLIOGRAPHY 


Strong  recommendations,  on  basis  of 
war  experience,  for  shorter  hours  and 
better  conditions  as  a  means  of  securing 
larger  output. 

International  association  for  la- 
bor legislation.  Report  of  the 
special  commission  on  hours  of 
labor  in  continuous  industries. 
London,  Pioneer  press,  1912.  26  p. 
Comparison  of  actual  conditions  in 
different  countries  and  the  results  ob- 
tained by  introducing  the  eight-hour, 
three-shift,  system. 

Kelley,  Florence.  The  sex  prob- 
lems in  industrial  hygiene.  (Amer- 
ican journal  of  public  hygiene, 
June,  1910,  v.  20:252-257.) 

Brief  plea  for  legal  regulation  of  the 
hours  of  labor  of  women  to  prevent  ex- 
cessive fatigue. 

Lee,  Frederic  S.  The  human 
machine  and  industrial  efficiency. 
New  York,  Longmans,  Green, 
1918.  v,  119  p. 

Scientific  data  reinforcing  the  case  for 
short  hours  and  good  working  conditions. 

Lever,  William  H.  L.  (Lord  Lever- 
hulme).  The  six-hour  day  and 
other  industrial  questions.  Lon- 
don, Allen,  1918.  331  p. 

Proposal  by  a  prominent  soap  manu- 
facturer for  the  introduction  of  six-hour 
shifts  in  his  plant. 

Manly,  Basil  M.  Work  periods  in 
continuous  night  and  day  occu- 
pations. (American  labor  legis- 
lation review,  March,  1914,  v.  4: 
109-116.) 

Argues  for  eight-hour  shifts  in  con- 
tinuous industries. 

New  York.  Department  of  la- 
bor. Bulletin  no.  49.  Albany, 
1911.  "Rest  day  legislation  in 
foreign  countries,"  p.  508-518. 

Abstracts  of  the  laws  in  all  foreign 
countries. 

State  factory  investi- 
gating commission.  Second 
report.  Albany,  1913.  "Night 
work  of  women  in  factories," 
p.  193-215. 

Summarizes  investigations  and  the 
legal  status  of  night  work. 

Persons,  Charles  E.,  Parton, 
Mabel,  and  Moses,  Mabelle. 

•  Labor  laws  and  their  enforce- 
ment. New  York,  Longmans, 
1911.  "The  early  history  of  fac- 
tory legislation  in  Massachu- 
setts; from  1825  to  the  passage 
33 


of  the  ten-hour  law  in  1874," 
p.  1-129.  "Hours  of  labor:  Of 
women  and  children — Of  public 
employees,"  p.  314-315. 

Gives  history  of  the  agitation  for 
shorter  hours  in  Massachusetts  and  the 
situation  in  1911. 

Price,  George  M.  Night  work  of 
women.  (In  Second  report  of 
the  New  York  state  factory  in- 
vestigating commission,  Albany, 

1913,  P-  439-459-) 

Investigations  in  a  cordage  mill,  and 
analysis  of  the  personal  histories  of  ioo 
women  night  workers. 
United  States.  Final  report  of 
industrial  commission.  Wash- 
ington, 1902.  "Hours  of  labor," 
v.  19763-793-. 

Effect  of  reduction  of  working  time  on 
output  and  development  of  legal  theory. 

Report    on    condition    of 

woman  and  child  wage-earners 
in  the  United  States.  (Senate 
doc.  645,  6ist  Cong.,  2d  sess.) 
Washington,  Govt.  print,  off., 
1910-1912.  19  v. 

Report  of  extensive  official  investiga- 
tions into  the  cotton,  clothing,  glass,  and 
silk  industries,  laundries,  etc. 

Report    on    conditions    of 

employment  in  the  iron  and  steel 
industry  in  the  United  States. 
(Senate  doc.  no,  62d  Cong.,  1st 
sess.)  Washington,  Govt.  print, 
off.,  1911-1912. 

V.  i  deals  with  wages  and  hours  of 
labor;  v.  2  gives  detailed  tables  in  re- 
gard to  the  same;  v.  3  treats  of  the  va- 
rious factors  affecting  the  health  and 
efficiency  of  the  working  force,  such  as 
the  seven-day  week  and  the  twelve-hour 
day. 

Bureau  of  labor  statis- 
tics. Bulletins.  Washington, 
Govt.  print,  off.,  1895- 

No.  52,  "Child  labor  in  the  United 
States,"  H.  R.  Sewall.  No.  96,  "Work- 
ing hours,  earnings,  and  duration  of  em- 
ployment of  women  workers  in  Maryland 
and  California,  1911,"  Marie  L.  Oben- 
auer.  No.  116,  "Hours,  earnings,  and 
duration  of  employment  of  wage-earn- 
ing women  in  selected  industries  in  the 
District  of  Columbia."  No.  117,  "Pro,; 
hibition  of  nightwork  of  y9ung  persons." 
No.  118,  "Ten-hour  maximum  working 
day  for  women  and  young  persons." 
No.  119,  "Working  hours  of  women  in 
the  pea  canneries  of  Wisconsin."  No. 
128,  "Wages  and  hours  of  labor  in  the 
cotton,  woolen,  and  silk  industries,  1890- 
1912."  No.  129,  "Wages  and  hours  of 


PRINCIPLES  OF  LABOR  LEGISLATION 


labor  in  the  lumber,  millwork,  and  furni- 
ture industries,  1890-1912."  No.  131, 
"  Union  scale  of  wages  and  hours  of  la- 
bor, 1907-1912."  No.  134.  "Wages  and 
hours  of  labor  in  the  boot  and  shoe  and 
hosiery  and  knit  goods  industries,  1890- 
1912."  No.  135.  "Wages  and  hours  of 
labor  in  the  cigar  and  clothing  indus- 
tries, I9H  and  1912."  No.  137. 
"Wages  and  hours  of  labor  in  the  build- 
ing and  repairing  of  steam  railroad 
cars."  No.  143,  "Union  scale  of  wages 
and  hours  of  labor,  May  25.  I9I3-." 
No.  150,  "Wages  and  hours  of  labor  m 
the  cotton,  woolen,  and  silk  industries, 
1907-1913."  No.  151.  "Wages  and 
hours  of  labor  in  the  iron  and  steel  in- 
dustry in  the  United  States,  1907-1912." 
No.  153,  "Wages  and  hours  of  labor  in 
the  lumber,  millwork,  and  furniture  in- 
dustries, 1907-1913-"  No.  154.  "Wages 
and  hours  of  labor  in  the  boot  and  shoe 
and  hosiery  and  knit  goods  industries, 
1907-1913."  No.  160,  "Hours,  wages, 
and  conditions  of  labor  of  women  in 
Indiana  mercantile  establishments  and 
garment  factories."  No.  161,  "Wages 
and  hours  of  labor  in  the  clothing  and 
cigar  industries,  1911-1913."  No.  163. 
"  Wages  and  hours  of  labor  in  the  build- 
ing and  repairing  of  steam  railroad  cars, 
1907-1913."  No.  168,  "  Wages  and  hours 
of  labor  in  the  iron  and  steel  industry, 
1007-1913."  No.  171,  "Union  scale  of 
wages  and  hours  of  labor,  May  i,  1914." 
No.  178,  "Wages  and  hours  of  labor  in 
the  boot  and  shoe  industry,  1907-1914." 
No.  187,  "Wages  and  hours  of  labor  in 
the  men's  clothing  industry.  191 1-1914.-" 
No.  190,  "Wages  and  hours  of  labor  in 
the  cotton,  woolen,  and  silk  industries 
1907-1914."  No.  204,  "Street  railway 
employment  in  the  United  States."  No. 
214,  "  Union  scale  of  wag^es  and  hours  of 
labor.  May  15.  1916."  No.  218,  "Wages 
and  hours  of  labor  in  the  iron  and  steel 
industry,  1907-1915."  No.  221,  "Hours, 
fatigue,  and  health  in  British  munition 
factories."  No.  225,  "Wages  and  hours 
of  labor  in  the  lumber,  millwork,  and 
furniture  industries,  1915."  No.  230, 
"Industrial  efficiency  and  fatigue  in 
British  munition  factories."  No.  232, 
"Wages  and  hours  in  the  boot  and  shoe 


industry,  1907-1916."  No.  238,  "Wages 
and  hours  of  labor  in  woolen  and  worsted 
goods  manufacturing,  1916."  No.  239, 
"Wages  and  hours  of  labor  in  cotton 
goods  manufacturing  and  finishing, 
1916."  No.  245.  "Union  scale  of  wages 
and  hours  of  labor.  May  15,  1917."  No. 
249,  "Industrial  health  and  efficiency." 
No.  252,  "Wages  and  hours  of  labor  in 
the  slaughtering  and  meat-packing  in- 
dustry, 1917-"  .No.  261,  "Wages  and 
hours  of  labor  in  woolen  and  worsted 
goods  manufacturing,  1918." 

Monthly     labor     review. 

Washington,    Govt.    print,    off., 


Give_s  digests  of  investigations  into 
hours  in  various  industries,  and  legisla- 
tion on  the  subject. 

National       war       labor 

board.  Memorandum  on  the 
eight-hour  working  day.  Wash- 
ington, Govt.  print,  off.,  1918. 

Actual  effects  of  shorter  work  day  in 
increasing  production;  summary  of 
existing  eight-hour  legislation  for  men. 

Treasury     Department. 

Public  health  service.  Com- 
parison of  an  eight-hour  plant 
and  a  ten-hour  plant.  (Public 
health  bulletin  No.  106,  Josephine 
Goldmark  and  Mary  D.  Hop- 
kins.) Washington,  Govt.  print, 
off.,  1920.  213  p. 

Careful  experimental  study,  showing 
superiority  of  eight-hour  plant  in  main- 
tenance of  output,  reduction  of  lest 
time,  more  incentive  to  individual  out- 
put, and  fewer  accidents. 
Van  Kleeck,  Mary.  Working  hours 
of  women  in  factories.  (Char- 
ities, 1906-1907,  v.  17:13-21.) 

Describes  actual  conditions,  non-en- 
forcement of  ten-hour  law,  and  results  in 
physical  condition  of  working  women. 

See  also  under  Safety  and  health: 
Keeling. 


VI.     UNEMPLOYMENT 


American  association  for  labor 
legislation.  American  labor  leg- 
islation review.  Quarterly,  1911- 

Issues  dealing  primarily  with  unem- 
ployment are:  v.  4,  no.  2.  May,  1914, 
Proceedings  of  the  first  national  con- 
ference on  unemployment"  (includes 
critical  bibliography);  v.  5,  no.  2,  June, 
1915.  "Proceedings  of  the  second  na- 
tional conference  on  unemployment" 
(includes  critical  bibliography);  v.  5, 
no.  3,  Nov.,  1915,  "Unemployment  sur- 
vey." 


Andrews,  John  B.  A  practical 
program  for  the  prevention  of 
unemployment  in  America.  New 
York,  1914.  24  p. 

A  number  of  constructive,  practical 
suggestions  looking  to  the  prevention  of 
unemployment  through  the  establish- 
ment of  public  employment  exchanges, 
systematic  distribution  of  public  work, 
regularization  of  industry,  unemploy- 
ment insurance,  and  other  helpful 
measures  including  constructive  care  o/ 
the  unemployable. 


BIBLIOGRAPHY 


D  fe  r  Arbeitsnachweise  i  n 
Deutschland.  Halbmonats- 

schrift  der  Centralstelle  fur  Ar- 
beitsmarktberichte.  Zugleich  Or- 
gan des  Verbandes  deutscher  Ar- 
beitsnachweise. (Formerly  "Der 
Arbeitsmarkt.")  Berlin,  1897- 

The  leading  source  of  information  on 
the  condition  of  the  German  labor 
market  and  on  the  operations  of  the 
German  labor  exchanges. 

Beveridge,  William  Henry.  Un- 
employment; a  problem  of  in- 
dustry. London,  Longmans, 
1912.  405  p. 

Discusses  the  problem  and  its  limits, 
sources  of  information,  seasonal  fluctua- 
tions, cyclical  fluctuation,  the  reserve  of 
labor,  loss  and  lack  of  industrial  quality, 
the  personal  factor,  remedies  of  the  past, 
and  principles  of  future  policy.  Valu- 
able appendix  on  public  labor  exchanges 
in  Germany. 

Beveridge,  W.  H.,  and  Rey,  C.  F. 

Labor  exchanges  in  the  United 
Kingdom.  (Quarterly  bulletin 
of  the  international  association 
on  unemployment,  July,  1913, 
v.  3:767-825.) 

Authoritative  description  of  British 
employment  exchange  system  and  its 
methods  of  operation. 

California.  Commission  of  im- 
migration and  housing.  Re- 
port on  unemployment.  State 
print,  off.,  1914.  73  p. 

Supplement  to  first  annual  report. 
Recommendations  for  the  elimination  of 
unemployment,  including  state  labor 
exchanges,  regulation  of  private  employ- 
ment agencies,  housing  regulation,  un- 
employment insurance,  rural  credits, 
state  land  bureau  and  other  points. 

Chicago.  Commission  on  the 
unemployed.  Report.  Chi- 
cago, 1914. 

Results  of  two  years'  intensive  study. 

Great  Britain.     Board  of  trade. 

Abstract  of  labor  statistics  of 
the  United  Kingdom.  London, 
annually. 

Contains  especially  fluctuations  in 
employment,  unemployment  insurance, 
operation  of  labor  exchanges,  women's 
employment  bureaus,  distress  commit- 
tees, trade  union  unemployed  benefits. 

Ministry  of  labor.  La- 
bour gazette.  London,  fridnthly, 
1893- 

Regularly  contains  sections  on  the 
labor  market,  unemployment  insurance, 
employment  in  the  principal  industries 
and  public  labor  exchanges. 


Royal  commission  on 

poor  laws  and  relief  of  dis- 
tress. Report  of  the  Royal  com- 
mission on  the  poor  laws  and 
relief  of  distress.  Part  VI,  "Dis- 
tress due  to  unemployment." 
London,  1909.  3O3~445  p. 

The  Minority  report  of  the 

Poor  law  commission.  . .  .  London. 
Printed  for  the  National  com- 
mittee to  promote  the  break-up 
of  the  Poor  law,  1909.  2  v. 

Minority  report  by  Sidney  and 
Beatrice  Webb;  part  2,  "Public  organi- 
zation of  the  labor  market,"  contains: 
The  able-bodied  under  the  unemployed 
workmen  act,  the  distress  from  unem- 
ployment, proposals  for  reform. 

International  association  on  un- 
employment. Bulletin  trimes- 
triel  de  1'Association  Interna- 
tionale pour  la  lutte  centre  le 
chdmage;  edited  by  Max  Laz- 
ard.  Paris,  1911- 

Contains  articles  by  European  and 
American  specialists,  in  English,  French, 
and  German.  The  issues  which  have 
appeared  to  date  have  dealt  with  the  fol- 
lowing topics:  191 1,  no.  i,  unemploy- 
ment insurance;  no.  2,  employment 
bureaus,  1912,  no.  1-2,  relation  of 
child  labor  to  unemployment:  no.  3, 
relation  of  emigration  and  immigration 
to  unemployment,  employment  bureaus 
for  agricultural  workers;  no.  4,  proceed- 
ings of  the  third  session  of  the  Interna- 
tional committee  on  unemployment. 
1913,  no.  i,  aid  to  the  unemployed; 
no.  2,  statistics  of  unemployment,  no.  3, 
results  of  the  international  study  of  pub- 
lic employment  exchanges  in  191 1 ;  no.  4, 
reports  on  unemployment  and  migra- 
tion. 1914.  no.  i,  international  reports 
on  the  operation  of  unemployment  in- 
surance systems,  reports  on  unemploy- 
ment and  public  works;  no.  2,  working 
of  unemployment  insurance  in  England, 
equilibrium  between  production  and  con- 
sumption, international  statistics  on 
unemployment. 

Kellor,  Frances  A.  Out  of  work. 
New  York,  Putnam,  1915.  560  p. 
Discussion  of  the  extent  of  unemploy- 
ment in  America,  unemployment  among 
women  and  children,  employment 
agencies,  unemployment  insuranfce,  crit- 
icism of  remedies  proposed,  and  a  pro- 
gram. 

Leiserson,     William      M.       The 

theory  of  public  employment  of- 
fices and  the  principles  of  their 
practical  administration.  New 
York,  Ginn,  1914.  27-46  p. 
(Reprinted  from  Political  science 


516       PRINCIPLES  OF  LABOR  LEGISLATION 


quarterly,    March,    1914,    v.    29, 
no.  i.) 

Comprehensive  review  of  the  subject, 
with  suggestions  for  operation  of  efficient 
exchanges. 

Lescohier,    Don    D.      The    labor 
market.     New  York,  Macmillan, 

1919-     338  P. 

Brilliantly  analyzes  the  causes  of  fluc- 
tuation in  American  labor  supply  and 
demand,  and  discusses  methods  for  re- 
ducing it.  Based  on  author's  wide  first- 
hand experience  as  well  as  on  extensive 
acquaintance  with  the  literature  of  the 
subject. 

Mess,  H.  A.  Casual  labor  at  the 
docks.  London,  Bell,  1916. 

The  scramble  for  work,  irregular  earn- 
ings and  their  consequences,  suggestions 
for  decasualization. 

National    employment    bureau. 

Hearings  before  the  Committee 
on  labor,  House  of  representa- 
tives, 63d  Cong.,  2d  sess.  Wash- 
ington, Govt.  print,  off.,  1914. 

112  p. 

Three  parts;  hearings  on  June  5, 
June  12,  and  July  13,  1914,  on  the 
Murdock  and  MacDonald  bills. 

New  York.  Commission  on 
employers'  liability  and  other 
matters.  Third  report,  "  Unem- 
ployment and  lack  of  farm  labor." 
Albany,  1911.  245  p. 

Study  of  conditi9ns  in  New  York  state 
and  brief  description  of  unemployment 
insurance  plans  in  force  abroad. 

Rowntree,  B.  Seebohm,  and 
Lasker,  Bruno.  Unemploy- 
ment, a  social  study.  London, 
Macmillan,  1911.  317  p. 

Account  of  a  detailed  investigation  of 
unemployment  in  York,  together  with 
suggestions  for  remedying  the  evils 
which  it  disclosed. 

Slichter,  Sumner  H.  The  turn- 
over of  factory  labor.  New  York, 
Appleton,  1919.  xiv,  460  p. 

Exhaustive  and  authoritative  treat- 
ment of  the  amount,  cost,  causes  and 
means  of  reducing  the  shifting  of  work- 
ing forces. 

United  States.  Bureau  of  edu- 
cation. Juvenile  labor  bureaus 
and  vocational  guidance  in  Great 
Britain.  (Its  Bulletin,  no.  482: 
13-17.) 

.... The  school  and  the  start  in 

Me:  a  study  of  the  relation  be- 
tween school  and  employment  in 
England,  Scotland,  and  Germany. 


(Its  Bulletin,  1914,  no.  4,  whole 
no-  575-)  Washington,  Govt. 
print,  off.,  1914.  146  p. 
_  Contains  much  information  of  value 
in  regard  to  methods  of  juvenile  labor 
exchanges  and  juvenile  placement  work. 

Bureau  of  labor  statis- 
tics. Bulletins.  Washington, 
Govt.  print,  off.,  1895- 

No.  109,  "Statistics  of  unemploy- 
ment and  the  work  of  employment 
offices  '  No.  172,  "Unemployment  in 
New  York  city,  New  York."  No.  182, 
Unemployment  among  women  in  de- 
partment and  other  retail  stores  of  Bos- 
ton. No.  183.  "Regularity  of  employ- 
ment in  the  women's  ready-to-wear 
garment  industries."  No.  192,  "Pro- 
ceedings of  the  American  association  of 
public  employment  offices."  No.  195 
Unemployment  in  the  United  States." 
No.  196.  "Proceedings  of  employment 
managers  conference,  Minneapolis,  Jan- 
uary 19  and  20,  1916."  No.  202,  "Pro- 
ceedings of  the  conference  of  employment 
managers'  association  of  Boston,  Mass., 
held  May  10,  1916."  No.  206,  "The 
British  system  of  labor  exchanges,"  B. 
Lasker.  No.  227,  "Proceedings  of  the 
employment  managers'  conference,  Phila- 
delphia, Pa.,  April  2  and  3,  1917."  No. 
241,  Public  employment  offices  in  the 
United  States,"  John  G.  Herndon,  Jr. 
No.  247,  "Proceedings  of  the  employ- 
ment managers'  conference.  Rochester. 
N.  Y.f  May  9,  10,  and  n,  1918." 

Monthly    labor     review. 

Washington,    Govt.    print,    off., 


Furnishes  data  on  labor  turnover, 
operation  of  public  employment  offices, 
and  related  topics. 


Von  Mayr,  G.,  and  Varlez,  Louis. 

La  statistique  du  ch6mage.  Ghent, 
1913-     i86p. 

Report  of  the  special  committees  ap- 
pointed by  the  International  statistical 
institute  and  the  International  associa- 
tion on  unemployment,  with  recommen- 
dations for  more  frequent,  general,  and 
uniform  gathering  of  statistics. 
Webb,  Sidney.  Seasonal  trades, 
by  various  writers,  with  an  intro- 
duction by  Sidney  Webb.  Lon- 
don, Constable,  1912.  410  p. 

The  outcome  of  a  seminar  at  the  Lon- 
don school  of  economics  and  political 
science  during  the  session  of  1910. 

Webb,  Sidney,  and  Webb,  Bea- 
trice. The  prevention  of  desti- 
tution. London,  1911.  348  p. 

Treats  of  sweating  and  unemployment 
as  causes  of  destitution,  how  to  prevent 
unemployment  and  underemployment, 
insurance,  the  enlarged  sphere  of  vol- 
untary agencies  in  the  prevention  of 


BIBLIOGRAPHY 


destitution,    the    need    for    a    common  Account  of  a  successful   attempt  to 

registrar     of     public     assistance,     the  abolish   casual   labor   on   the   docks   of 

"moral  factor."  Liverpool;     the    high    water    mark    of 

Williams,    R.     First  year's  work-  efforts  in  this  direction. 

ing  of  the  Liverpool  docks  scheme.  See  also  under  The  minimum  wage: 

London,  King,  1914.     192  p.  Andrews. 


VII.    SAFETY  AND  HEALTH 


American  association  for  labor 
legislation.  American  labor  leg- 
islation review.  Quarterly,  1911- 
Among  the  important  issues  dealing 
with  saftey  and  health  are:  v.  I,  no.  i, 
Jan.,  1911,  "Proceedings  of  the  fourth 
annual  meeting";  v.  2.  no.  i,  Feb.,  1912, 
"Proceedings  of  the  fifth  annual  meet- 
ing"; v.  2,  no.  2,  June,  1912,  "Second 
national  conference  on  industrial  dis- 
eases" (includes  critical  bibliography); 
y.  2,  no.  4,  Dec.,  1912,  "Immediate  leg- 
islative program";  v.  6,  no.  i,  March, 
1916,  "Protection  of  seamen";  v.  6,  no. 
4,  Dec.,  1916,  "Women  in  industry." 

Eastman,  Crystal.  Work  acci- 
dents and  the  law.  New  York, 
Charities  publication  committee, 
1910.  xvi,  345  p. 

Chapters  on  the  "Personal  factor  in 
industrial  accidents,"  "Distribution  of 
the  burden  of  income  loss,"  and  "The 
effect  of  industrial  fatalities  upon  the 
home." 

Hay  hurst,  Emery  R.  Industrial 
health-hazards  and  occupational 
diseases  in  Ohio.  Columbus, 
Ohio  state  board  of  health,  1915. 
438  p. 

Classification  of  industries  and  a  study 
of  the  causes  of  hazard  in  each,  including 
dust,  lighting,  ventilation,  sanitation, 
fatigue,  poisons. 

Illinois.  Commission  on  oc- 
cupational diseases.  Report. 
Chicago,  1911.  219  p. 

Authoritative  treatise  based  on  orig- 
inal investigations  by  experts  with  gen- 
eral description  of  the  work,  discussion 
of  principles  of  effective  legislation,  text 
of  proposed  bills,  suggestions  for  cards 
of  instruction  for  employees  in  dangerous 
trades,  provisions  of  protective  laws  in 
states  of  the  union  and  in  European 
legislation. 

International  congress  on  hy- 
giene and  demography.  Trans- 
actions of  the  1 5th  international 
congress,  Washington,  Sept.  23- 
28,  1912.  6  v. 

V.  i,  part  2  contains  article  on  "In- 
dustrial accidents  and  trade  diseases  in 
the  United  States,"  by  Frederick  L. 


Hoffman,  p.  763-803.  V.  3,  part  2  on 
Hygiene  of  occupations  contains  a  col- 
lection of  papers  dealing  with  various 
phases  of  occupational  hygiene.  Among 
the  subjects  considered  in  their  relations 
to  industrial  hygiene  are  child  labor, 
tenement  hous?  manufacturing,  and  in- 
dustrial accidents. 

Keeling,  Frederic.  Child  labor  in 
the  United  Kingdom,  a  study  of 
the  development  and  administra- 
tion of  the  law  relating  to  the  em- 
ployment of  children.  London, 
King,  1914.  307  p. 

Gives  minimum  standards  required  for 
entrance  to  dangerous  trades. 

Kober,  George  M.,  and  Hanson, 
William  C.  Diseases  of  occupa- 
tion and  vocational  hygiene. 
Philadelphia,  Blakiston,  1916. 
xxi,  918  p. 

Basic  data,  by  experts  in  their  respec- 
tive fields,  on  the  character,  gravity, 
causes,  and  prevention  of  occupational 
diseases. 

National  child  labor  committee. 
American  child.  Quarterly,  1912- 

From  1912-1918  called  Child  labor 
bulletin.  Dealing  with  prevalence  of 
child  labor,  special  occupational  hazards, 
and  enactment  and  enforcement  of  pro- 
tective legislation. 

National  council  for  industrial 
safety.  Proceedings  of  safety 
congresses,  1912- 

Articles  on  fire,  accident,  and  occupa- 
tional disease  prevention,  effective  legis- 
lation, and  organization  of  efforts  to 
promote  safety. 

New  York.  State  factory  Inves- 
tigating commission.  Reports, 
1912-1915. 

Results  of  investigations  into  fire 
hazard,  tenement  labor,  occupational 
diseases,  sanitary  conditions,  and  acci- 
dent prevention  in  mercantile  and  manu- 
facturing establishments. 

Occupational  mortality  statis- 
tics. Experience  of  thirty-four 
life  companies  upon  ninety-eight 
special  classes  of  risks.  Com- 


5'* 


PRINCIPLES  OF  LABOR  LEGISLATION 


piled  and  published  by  the  Ac- 
tuarial society  of  America.  New 
York,  1903.  xiv,  479  p. 

Experience  of  leading  life  insurance 
companies  with  regard  to  specially  haz- 
ardous occupations  and  groups  of  per- 


Oliver,  Thomas.  Dangerous 
trades:  the  historical,  social,  and 
legal  aspects  of  industrial  occu- 
pations as  affecting  health,  by  a 
number  of  experts;  edited  by 
Thomas  Oliver.  London,  Mur- 
ray, 1902.  891  p. 

Authoritative  discussions  by  specialists 
of  international  reputation. 

Diseases      of     occupation 

from  the  legislative,  social,  and 
medical  points  of  view.  London, 
Methuen,  1908.  xix,  427  p. 

Comprehensive  clinical  and  industrial 
descriptions. 

Persons,  Charles  E.,  Parton, 
Mabel,  and  Moses,  Mabelle. 

Labor  laws  and  their  enforcement. 
Xew  York,  Longmans,  1911. 
"Unregulated  conditions  in  wom- 
en's work,"  p.  131-155. 

Conditions  of  work  in  rubber,  cordage, 
and  twine  factories,  and  instances  of 
violation  of  health  laws. 

Price,  George  M.  The  modern 
factory.  New  York,  Wiley,  1914. 
xx,  574  p. 

Safety,  sanitation,  and  welfare  in  the 
workplaces  as  affected  by  private  effort 
and  by  legislation. 

Schwedtman,  Ferdinand  C.,  and 
Emery,  James  A.  Accident 
prevention  and  relief.  New  York, 
National  association  of  manu- 
facturers, 1911.  xxxvi,  481  p. 

An  investigation  of  the  subject  in 
Europe  with  special  attention  to  Eng- 
land and  Germany,  with  recommenda- 
tions for  action  in  the  United  States. 

Thompson,  W.  Oilman.  The  oc- 
cupational diseases,  their  causa- 
tion, symptoms,  treatment,  and 
prevention.  New  York,  Apple- 
ton,  1914.  724  p. 

Detailed  study  of  causes  and  symp- 
toms, with  methods  of  treatment  and 
prevention. 

Tolman,  William  H.,  and  Ken- 
dall, Leonard  B.  Safety;  meth- 
ods for  preventing  occupational 
and  other  accidents  and  disease. 
New  York,  Harper,  1913.  422  p. 
The  philosophy  of  safety,  and 


tive  descriptions  of  the  need  for  and  suc- 
cess of  preventive  devices. 

United  States.  Report  on  condi- 
tion of  woman  and  child  wage- 
earners  in  the  United  States. 
(Senate  doc.  645,  6ist  Cong., 
2d  sess.)  Washington,  Govt. 
print,  off.,  1910-1912.  19  v. 

Discusses  the  working  hours  and  haz- 
ards in  the  cotton  textile  industry, 
clothing,  glass,  silk  industry,  and  laun- 
dries. 

Report    on    conditions    of 

employment  in  the  iron  and  steel 
industry  in  the  United  States. 
(Senate  doc.  no,  62 d  Cong.,  ist 
sess.)  Washington,  Govt.  print, 
off.,  1911-1913.  4  v. 

V.  3  treats  of  various  factors  affecting 
the  health  and  efficiency  of  the  working 
force,  such  as  heat,  speed,  and  severity 
of  work.  V.  4  treats  of  accident  rates, 
relation  of  night  work  and  long  turns  to 
accidents,  and  organization  for  safety. 

S^ Bureau  of  labor  statis- 
tics. Bulletins.  Washington, 
Govt.  print,  off.,  1895- 

Among  the  bulletins  containing  im- 
portant articles  on  industrial  safety  and 
health  are:  No.  44.  "Factory  sanitation 
and  labor  protection."  C.  F.  W.  Doeh- 
ring;  No.  75,  "Industrial  hygiene," 
G.  M.  Kober;  No.  79,  "Mortality  from 
consumption  in  dusty  trades,"  F.  L. 
Hoffman;  No.  86,  " Phosphorus  poison- 
ing in  the  match  industry  in  the  United 
States,"  J.  B.  Andrews;  No.  90,  "Fatal 
accidents  in  coal  mining,"  F.  L.  Hoff- 
man; No.  95,  "Industrial  lead  pois 


mg 


n;  No.  95,  Industrial  lead  poison- 
,"  T.  Oliver,  "White  lead  industry 
in  the  United  States,"  A.  Hamilton, 
"  Deaths  from  industrial  lead  poisoning," 
J.  B.  Andrews;  No.  100,  "List  of  in- 
dustrial poisons,"  compiled  for  the  In- 
ternational association  for  labor  legis- 
lation by  T.  Sommerfeld  and  R.  Fischer; 
No.  104,  "Lead  poisoning  in  potteries, 
tile  works,  and  porcelain  enameled  sani- 
tary ware  factories,"  A.  Hamilton; 
No.  1 20,  "Hygiene  of  the  painter's 
trade,"  A.  Hamilton;  No.  127,  "Dan- 
gers to  workers  from  dusts  and  fumes, 
and  methods  of  protection,"  W.  C. 
Hanson;  No.  141,  "Lead  poisoning  in 
the  smelting  and  refining  of  lead,'  A. 
Hamilton;  No.  157,  "Industrial  acci- 
dent statistics,"  F.  L.  Hoffman;  No.  165, 
"Lead  poisoning  in  the  manufacture  of 
storage  batteries,"  A.  Hamilton;  No. 
179,  "Industrial  poisons  used  in  the  rub- 
ber industry,"  A.  Hamilton;  No.  188, 
"Report  of  British  departmental  com- 
mittee on  the  danger  in  the  use  of  lead 
in  the  painting  of  buildings";  No.  207, 
"Causes  of  death  by  occupation,"  L.  1. 
Dublin;  No.  209,  "Hygiene  of  the  print- 
ing trades,"  A.  Hamilton,  C.  H.  Verrill; 
No.  219,  "Industrial  poisons  used  or  pro- 


BIBLIOGRAPHY 


duced  in  the  manufacture  of  explosives," 
A.  Hamilton;  No.  231,  "  Mortality  from 
respiratory  diseases  in  dusty  trades,"  F. 
L.  Hoffman;  No.  234,  "The  safety  move- 
ment in  the  iron  and  steel  industry,  1907 
to  1917."  L.  W.  Cheney,  H.  S.  Hanna; 
No.  249,  "Industrial  health  and  effi- 
ciency; final  report  of  the  British  health 
of  munition  workers  committee";  No. 
251,  "Preventable  death  in  cotton  manu- 
facturing industiy,"  A.  R.  Perry;  No. 
253,  "Women  in  the  lead  industries," 
A.  Hamilton;  No.  267,  "Anthrax  as  an 
occupational  disease,"  J.  B.  Andrews. 

Monthly      labor      review. 

Washington,    Govt.    print,    off., 


Summarizes    current    studies    of    in- 
dustrial     accidents     and     occupational 


Bureau  of  mines.  Bulle- 
tins and  technical  papers.  Wash- 
ington, Govt.  print,  off.,  1910- 

Especially  valuable  are  the  following 
technical  papers:  No.  40,  "Metal  mine 
accidents  in  the  United  States  during 
.  .  .  1911,"  A.  H.  Fay;  No.  46,  "Quarry 
accidents  in  the  United  States  during  .  .  . 
1911."  A.  H.  Fay;  and  No.  48,  "Coal 
mine  accidents  m  the  United  States, 
1896-1912,"  F.  W.  Horton.  Bulletin  No. 
333.  "Coal  mine  accidents;  their  causes 
and  prevention,"  C.  Hall  and  W.  O. 
Snelling,  is  also  noteworthy. 


VIII.     SOCIAL  INSURANCE 


Alden,  Percy.  Democratic  Eng- 
land. New  York,  Macmillan, 
1912.  xii,  271  p. 

Accounts  of  insurance  against  sickness 
and  old  age  in  England,  together  with 
references  to  insurance  legislation  in 
Australia,  p.  122-165. 

American  association  for  labor 
legislation.  American  labor  leg- 
islation review.  Quarterly,  1 911- 
P resents,  up-to-date  material  on  de- 
velopments in  various  branches  of  social 
insurance.  V.  3,  no.  2,  June,  1913,  "So- 
cial insurance";  v.  5,  no.  i,  March,  1915, 
"Workmen's  compensation";  v.  6,  no. 
I,  March.  1916,  "Health  insurance"; 
v.  6,  no.  2,  June,  1916,  "Brief  for  health 
insurance";  v.  7,  no.  I,  March,  1917, 
"Health  insurance";  v.  7,  no.  4,  Dec., 
1917,  "Health  insurance;  a  positive 
statement  in  answer  to  opponents";  v. 
8,  no.  I,  March,  1918,  pt.  iv,  "Problems 
and  methods  of  investigating  commis- 
sions"; v.  8,  no.  2,  June,  1918,  "Second 
national  conference  of  health  insurance 
commissioners";  v.  9,  no.  i,  March,  1919. 
pt.  v,  "Workmen's  compensation  for 
cripples." 

.  .Present    status    of    unem- 


ployment insurance:  prepared  by 
the  German  imperial  statistical 
bureau.  (American  labor  legis- 
lation review,  May,  1914,  v.  4: 
373-387-) 

Tabular  summary  of  European  laws, 
number  of  persons  covered,  and  amount 
of  benefits  paid. 

Standards   for   workmen's 

compensation  laws.  Revised  ed. 
Feb.,  1920. 

Essential  features  of  satisfactory  law, 
with  annotations  showing  states  already 
possessing  such  provisions. 
Three  years  under  the  New 


Jersey  workmen's  compensation 
law.  (American  labor  legislation 
review,  Mar.,  1915,  v.  5:31-102. 
Also  reprint.) 

Striking  picture  of  inadequacy  due  to 
court  method  of  administration,  lack  of 
security  for  payments,  and  low  scale  of 
compensation. 

American    medical    association. 

Social  insurance.  Report  of  the 
Special  committee  of  the  Ameri- 
can medical  association  for  1919. 
Chicago,  Council  on  health  and 
public  instruction  of  the  Ameri- 
can medical  association,  1919. 
59  P- 

Treats  sickness  as  a  social  problem  and 
discusses  universal  workmen's  health  in- 
surance as  a  means  of  distributing  the 
cost  and  providing  improved  medical 
care.  Urges  physicians  to  take  C9nstruc- 
tive  part  in  shaping  pending  legislation : 

Andrews,  John  B.  Limitations  of 
occupational  disease  compensa- 
tion. (American  labor  legislation 
review,  Dec.,  1918,  v.  8:311-315. 
Also  reprint.) 

Shows  that  inclusion  of  occupational 
diseases  under  workmen's  compensation 
laws  would  meet  only  slight  fraction  of 
the  sickness  among  wage-earners. 

Bailward,  W.  A.  Some  impres- 
sions of  the  first  six  months' 
working  of  compulsory  insurance 
against  unemployment  in  Eng- 
land. (Quarterly  bulletin  of  the 
International  association  on  un- 
employment, April,  1914,  v.  4: 
480-499.) 

Interesting  study  of  operation  of  Eng- 
lish act  and  of  problems  arising  under  it. 


S2o       PRINCIPLES  OF  LABOR  LEGISLATION 


Beveridge,  William  H.,  and  Rey, 

C.  F.  State  unemployment  in- 
surance in  the  United  Kingdom. 
(Quarterly  bulletin  of  the  Inter- 
national association  on  unem- 
ployment, Jan.,  1914,  v.  4:129- 
187.) 

Detailed  statistical  study  of  operations 
under  the  act. 

Blanchard,  Ralph  H.  Liability 
and  compensation  insurance. 
New  York,  Appleton,  1917.  xii, 

394  P- 

Excellent  analysis  of  existing  work- 
men's compensati9n  legislation  and  ad- 
ministrative practice.  Strong  argument 
for  more  liberal  standards  and  wider 
application  of  the  laws. 

British  medical  association.  In- 
surance acts  committee.  In- 
terim report  on  the  future  of  the 
insurance  acts.  London,  1917. 
12  p. 

Based  on  replies  to  questionnaire  sent 
to  each  branch  of  the  association.  Shows 
wide  agreement  among  physicians  on 
beneficial  results  of  health  insurance  act 
and  suggestions  for  its  expansion. 

California.  Social  insurance 
commission.  Report  of  the 
Social  insurance  commission  of 
the  state  of  California.  Sacra- 
mento, 1917.  339  p. 

First  official  American  report  on  the 
subject.  On  data  secured  through  two 
years'  study  the  commission  finds  for 
compulsory,  contributory,  non-commer- 
cial system. 

Carstens,  C.  C.  Public  pensions 
to  widows  with  children;  a  study 
of  their  administration  in  several 
American  cities.  New  York, 
Russell  Sage  foundation,  1913. 

36  p. 

An  adverse  analysis  of  the  workings 
of  widows'  pensions  in  several  states  and 
cities,  with  suggestions  for  other  methods 
of  meeting  the  problem.  An  advance 
report  by  Mr.  Carstens  appeared  in  the 
Survey,  Jan.  4,  1913.  v.  29:  459-466. 

Coman,  Katharine.  Unemploy- 
ment insurance:  a  summary  of 
European  systems.  New  York, 
Progressive  natl.  serv.,  1915. 
21  p.  (Also  Survey,  1913-1914.) 
^Discusses  briefly  the  Ghent  system, 
Norway,  Denmark,  France,  and  Great 
Britain. 

Congres  international  des  assur- 
ances sociales.  Rapports.  Par- 
is, 1889;  Berne,  1891;  Milan, 


1894;  Brussels,  1897;  Paris,  1900; 
Dtisseldorf,  1902;  Vienna,  1905; 
Rome,  1908;  The  Hague,  1910. 

The  name  of  this  congress  has  gone 
through  several  changes.  The  name 
given  is  the  latest.  The  proceedings 
contain  valuable  articles  by  specialists 
in  the  field  in  English,  French,  and 
German. 

....... .Comite  permanent.  Bul- 
letin des  assurances  sociales. 
Paris,  1889- 

Contains  articles  of  specialists,  in  Eng- 
lish, French,  and  German. 

Dawson,  William  H.  Social  in- 
surance in  Germany,  1883-1911. 
New  York,  Scribner,  1912.  xi, 
283  p. 

An  up-to-date  historical  and  critical 
treatise  on  social  insurance  legislation  in 
Germany,  with  special  emphasis  on  pre- 
vention. 

Devine,  Edward  T.  Report  of  an 
investigation  of  matters  relating 
to  the  care,  treatment,  and  relief 
of  dependent  widows  with  de- 
pendent children  in  the  city  of 
New  York.  New  York,  The  com- 
mittee, 191.1.  58  p. 

Recommends  social  insurance  to  pre- 
vent commitment  of  children. 

Eastman,  Crystal.  Work-acci- 
dents and  the  law.  New  York, 
Charities  publication  committee, 
1910.  xvi,  345  p. 

A  study  of  the  causes  of  industrial  ac- 
cidents, and  the  remuneration  therefor, 
in  Allegheny  county,  Pa.,  in  1906-1907, 
with  argument  for  a  more  just  law. 

Fabian  research  department. 
Committee  of  enquiry.  The 

working  of  the  insurance  act. 
(New  statesman,  Mar.  14,  1914, 
v.  2,  no.  49,  special  supplement. 

32  p.) 

Discusses  operation  of  the  health  in- 
surance part  of  the  British  national  in- 
surance act,  points  out  shortcomings, 
and  suggests  important  improvements. 

Frankel,  Lee  K.,  and  Dawson, 
Miles  M.  Workingmen's  in- 
surance in  Europe.  New  York, 
Charities  publication  committee, 
1910.  xviii,  447  p. 

A  study  of  insurance  systems  in  force 
in  Great  Britain,  Holland,  Belgium, 
France,  Switzerland,  the  Scandinavian 
countries,  Italy,  Germany,  Austria,  with 
numerous  tables.  Convenient  for  refer- 
ence and  international  comparison. 

Friedensburg,    Ferdinand.      The 

practical  results  of  workingmen's 


BIBLIOGRAPHY 


521 


insurance  in  Germany.  Trans- 
lated from  the  German  by  Louis 
H.  Gray.  New  York,  The  work- 
men's compensation  service  and 
information  bureau,  1911.  62  p. 
(Published  originally  in  Zeit- 
schrift  fur  politik,  Berlin,  1911, 

v.  4:329-369-) 

A  severe  attack  on  the  German  system. 

Fuerth,  Henriette.  Die  Mutter- 
schaftsversicherung.  Jena,  Fisch- 
er, igil.  220  p. 

A  presentation  of  the  case  for  mater- 
nity insurance  and  a  resume  of  maternity 
insurance  legislation  in  all  countries. 

Gibbon,  I.  G.  Medical  benefit;  a 
study  of  the  experiences  of  Ger- 
many and  Denmark.  London, 
King,  1912.  xv,  296  p. 

A  critical  work  on  the  health  insur- 
ance laws  of  Germany  and  Denmark, 
their  operation,  and  benefits  resulting 
from  them. 

Unemployment  insurance. 

London,  King,  1911.  xvi,  354  p. 
A  study  of  the  various  schemes  of 
unemployment  insurance  in  continental 
Europe,  with  the  author's  conclusion  of 
the  necessity  of  state  voluntary  un- 
employment insurance.  The  advisability 
of  encouraging  the  formation  of  private 
voluntary  insurance  associations,  and  of 
labor  exchanges  to  cooperate  with  the 
state  system,  is  discussed. 

Great  Britain.     Board  of  trade. 

Unemployment  insurance.  First 
report  on  the  proceedings  of  the 
Board  of  trade  under  part  II  of 
the  National  insurance  act,  1911. 
London,  Darling,  1913.  82  p. 

A  complete  descriptive  and  statistical 
statement  of  the  operation  of  national 
unemployment  insurance  in  Great  Brit- 
ain during  the  year  ending  July,  1913- 
Sixteenth  abstract  of  la- 
bour statistics  of  the  United 
Kingdom.  London,  1913.  "Un- 
employment insurance,"  p.  12- 
21 ;  Seventeenth  abstract,  p.  169- 

Unemployed     benefits     of 

trade     unions.       London,     1911. 

327  P- 

Gives  unemployed  benefits  of  trade 
unions  and  earnings  in  insured  trades, 
with  tables  showing  the  rules  and  ex- 
penditure of  trade  unions  in  respect  of 
unemployed  benefits  and  also  showing 
earnings  in  the  insured  trades. 

Unemployment    insurance 

(umpire    regulations).      London, 


Eyre  and  Spottiswoode,  1912. 
6  p. 

Contains  regulations,  dated  March 
26,  1912,  made  by  the  Board  of  trade 
under  section  91  of  the  National  insur- 
ance act,  1911. 

Unemployment  insurance. 

Regulations  made  by  the  Board 
of  trade  under  part  II  of  the 
National  insurance  act,  1911. 
London,  Eyre  and  Spottiswoode, 
1912.  27  p. 

Decisions  given  by  the  um- 
pire respecting  claims  to  benefit. 
London,  Darling,  1914.  v.  i, 

327  P. 

Departmental  commit- 
tee on  sickness  benefit  claims 

under  the  national  insurance  act. 
Report.  London,  Unwin,  1914. 
87  p. 

Excellent  report  upon  the  alleged  ex- 
cessive claims  on  the  sickness  benefit 
funds,  with  an  analysis  of  causes  and 
suggestions  for  readjustment. 

National  health  insur- 
ance joint  committee.  Re- 
ports on  the  administration  of  the 
national  insurance  act,  part  I, 
health  insurance.  London,  Dar- 
ling, 1912-1913,  1913-1914- 

Detailed  descriptive  and  statistical 
reports  on  numbers  insured,  methods  of 
operation,  finances,  and  administrative 
problems. 

Halsey,  Olga  S.  Compulsory  un- 
employment insurance  in  Great 
Britain.  (American  labor  legis- 
lation review,  June,  1915,  v.  5: 
265-278.) 

Workings  of  English  act. 

Henderson,  Charles  Richmond. 

Industrial  insurance  in  the  United 
States.  Chicago,  University  of 
Chicago  press,  1911.  x,  454  p. 

A  revised  and  enlarged  version  of  the 
author's  Die  Arbeiterversicherung  in  den 
Vereinigten  Staaten  von  Nord  America, 
Berlin,  1907.  Describes  the  various 
forms  of  social  insurance  known  in  the 
United  States  and  Canada.  Contains  a 
summary  of  European  laws  on  working- 
men's  insurance  against  accident,  sick- 
ness, invalidity,  and  old  age,  with  statis- 
tics to  1911. 

Illinois.  Health  insurance  com- 
mission. Report  of  the  health 
insurance  commission.  Spring- 
field, 1919.  viii,  647  p. 

Valuable  first-hand  investigation  into 
sickness,  including  its  economic  results 


522 


PRINCIPLES  OF  LABOR  LEGISLATION 


and  the  experience  under  existing  insur- 
ance plans. 

Kennedy,  James  Boyd.  Bene- 
ficiary features  of  American  trade 
unions.  Baltimore,  Johns  Hop- 
kins press,  1908.  126  p. 

Description  of  benefit  systems  of 
American  trade  unions. 

Massachusetts.  Commission  on 
old  age  pensions,  annuities, 
and  insurance.  Report.  Bos- 
ton, 1910.  409  p. 

The  report  covers  the  origin  of  old  age 
pensions,  foreign  systems,  proposed  plans 
and  their  esti»nated  costs.  The  commis- 
sion concludes  that  it  would  be  inexpe- 
dient for  an  individual  state  to  adopt  a 
system  of  old  age  pensions,  and  that  only 
national  legislation  can  prove  effective. 

Commission  on  pen- 
sions. Report.  House  doc.  no. 
2450.  Boston,  1914.  345  p. 

Describes  pension  systems  in  effect  in 
Massachusetts  and  other  states,  with  an 
investigation  of  probable  costs.  Recom- 
mends a  compulsory  contributory  pen- 
sion system  for  employees  in  the  public 
service. 

Nassau,  Mabel.  Old  age  poverty 
in  Greenwich  village;  a  neighbor- 
hood study.  New  York,  Revell, 
1915.  105  p. 

Description  of  100  individuals  over  60 
years  of  age,  a  study  of  the  effects  of 
dependency  where  it  exists,  and  argu- 
ments in  favor  of  an  old  age  pension  sys- 
tem, contributed  to  by  the  state,  em- 
ployers, and  some  employees. 

New  York.  State  commission 
on  relief  for  widowed  moth- 
ers. Report.  Albany,  Lyon, 
1914.  584  p. 

A  careful  study  of  the  provisions  for 
the  support  of  dependent  widows  and 
children  in  New  York  state  and  in 
European  countries.  Recommendations 
for  county  boards  of  child  welfare  with 
power  to  grant  allowances  to  deserving 
widows  with  children. 

New  York  state  federation  of 
labor.  Reports  on  health  in- 
surance. 1918- 

These  pamphlets  present  the  attitude 
of  a  state  federation  of  labor  which  has 
given  long  and  careful  study  to  the  sub- 
ject. No.  I.  "Official  endorsement  of 
the  New  York  state  federation  of  labor." 
No.  2,  "Discussion  of  bill."  No.  3, 
"Advantages  to  industry."  No.  4,  "A 
demand  for  the  passage  of  a  health  in- 
surance law."  No.  5,  "Progress  toward 
health  insurance  legislation."  No.  6, 
"Opposition  attempts  to  mislead  work- 
ers." No.  7,  "Digest  of  the  speech  of 
Hon.  Frederick  M.  Davenport  on  April 


10,  1919.  immediately  preceding  the  pas- 
sage of  labor's  bill." 

New  Zealand.  Government  in- 
surance department.  A  brief 
survey  of  New  Zealand's  state 
life  insurance.  Wellington,  1906. 

36  p. 

Description  of  regulations  and  manage- 
ment of  the  department,  with  tables. 

Ohio.  Health  and  old  age  in- 
surance commission.  Health, 
health  insurance,  old  age  pen- 
sions; report,  recommendations, 
dissenting  opinions.  Columbus, 
1919.  xiii,  448  p. 

Approves  compulsory  contributory 
health  insurance,  carried  exclusively 
through  mutual  funds  and  associations, 
as  a  means  of  distributing  the  cost  of 
sickness. 

Pennsylvania.  Commission  on 
old  age  pensions.  Report  on 
old  age  pensions.  Harrisburg, 
1919.  294  p. 

Careful  study  of  old  age  dependency 
in  the  state,  showing  urgency  of  problem 
and  examining  possible  methods  of  meet- 
ing it.  ___ 

Pigou,  Arthur  Cecil.  Unemploy- 
ment. New  York,  Holt,  1913. 
256  p.  "Unemployment  insur- 
ance," p.  203-228. 

Popular  statement  of  subject. 
Rhodes,    J.    EM    2d.      Workmen's 
compensation.    New  York,  Mac- 
millan,  1917.     300  p. 

Traces  development  of  workmen's 
compensation  legislation  in  the  United 
States,  with  special  reference  to  insur- 
ance, administration,  and  constitution- 
ality. 

Rubinow,  I.  M.  Social  insurance, 
with  special  reference  to  Amer- 
ican conditions.  New  York, 
Holt,  1913.  vii,  525  p. 

Study  of  the  social  results  of  industria 
accident,  sickness,  old  age,  invalidity 
death,  and  unemployment,  with  the 
principles  and  development  of  social  in- 
surance against  these  contingencies. 
Standards  of  health  insur- 
ance. New  York,  Holt,  1916. 
322  p. 

Brisk  and  progressive  discussion  of 
such  points  as  the  justice  of  compulsion, 
coverage,  amount  of  medical  and  cash 
benefit,  and  exclusion  of  commercial  in- 
surance companies. 

Schloss,  David  F.  Insurance 
against  unemployment.  London, 
King,  1909.  x,  132  p. 

Suggestions  for  organizing  a  national 


BIBLIOGRAPHY  523 

system  of  unemployment  insurance,  by  legislation  of  1913,  are  given,  with  sum- 

trades,  in  cooperation  with  labor  regis-  maries  of  all  foreign  laws.     No.  155,  on 

tnes.  "Compensation    for    accidents    to    em- 

Schwedtman,   Ferdinand  C.,  and  ployees  of  the  United  States  "  is  a  report 

Emery,  James  A.    Accident  ore-  ?L°»per  Mionsc  un^er  ^e  act  of  *1ay  3?' 

vention  and  relief.     New  York,  ^^\£*^^*?S$?£l 

National    association    of    manu-  1915.    No.  201  is  a  report  on  statistics 

facttirers     TOTT        •xxxvi     /ifir   n  an(*  compensation  insurance  cost  by  a 

'  4'          *  committee  of  the  International  associa- 


d  char 

Seager,  Henry  Rogers.    Social  in- 

SUrance.     New  York,  Macmillan,  °f  the  third  annual  meeting  of  the  In- 

IQIO       17%  O  ternational  association  of  industrial  acci- 

•A  Sympathetic  aiscussion  of  the  need  SS*  ^^  Jf*  ^^J^Sfe 

and  the  principles  of  social  insurance  and  of    the    social  ^nsu  ranee    ronf^ 
the  extent  to  which  it  can  and  should  be 
introduced  in  the  United  States 


Squier,     Lee     Welling.       Old    age  compensation  on  woman  and  child  labor. 

dependency  in  the  United  States.  No-  24°  compares  the  workmen's  com- 

NPW      Vnrlr       Mnmnillari        inro  Pfnsation  laws  of  the  United  States  to 

jNew     York,     Macmillan,     1912.  ftec  t  IOI?     No  243  cojlect?  the  work. 

Xll,   361    p.  men's  compensation  legislation  of  1917 

The  author  treats  of  the  causes  of  old  and   1918.     No.   248  presents  the  pro- 

age  dependency,  the  efforts  at  relief,  and  ceedings  of  the  fourth  annual  meeting 

plans  for  prevention,  and  concludes  that  of  the  International  association  of  indus- 

old  age  pensions  are  the  best  solution  for  trial  accident  boards  and  commissions, 

the  problem  in  the  United  States.  ipi?- 

United  States.     Bureau  of  labor  ........  Monthly      labor     review. 

statistics.    Bulletins.    Washing-  Washington,    Govt.    print,    off., 

ton,  Govt.  print,  off.,  1895-  191  5~ 

These  contain  much  material  not  else-  Gives  digests  of  new  workmen's  com- 

where   found.      No.    90    contains   sum-  pensation  acts,  amendments,  reports  of 

mary  9f  foreign  compensation  acts  and  conferences    and    studies    dealing    with 

an  article  by  Miles  M.  Dawson  on  the  health  insurance,  old  age  pensions,  and 

cost  of  workmen's  insurance  in  various  the  like. 

countries.     No.  91  contains  translati9ns  ........  Workmen's  insurance  and 

of  the  old-age  and  invalidity  pension  benefit  funds  in  the  United  States. 

acts  of  Germany  and  France,  and  a  re-  /^                ,,.    , 

print  of  the  Australian  act.     No.  92  Twenty-third    anjnual    report    of 

on  "  Industrial  accidents  and  loss  of  earn-  the  U.  S.  Commissioner  of  labor. 

ing  power;    German  experience."  is  an  Washington,     Govt.     print,     off. 

elaborate  analysis  of  accident  experience  of 

in  1897  and  1907,  published  too  late  to  IX°5-,     tt,10  P-    ,. 

be  included  in  the  24th  annual.     The  Study  of  1200  relief  funds  or  insurance 

purpose  of  the  study  is  to  indicate  the  societies  established  by  trade  unions,  by 

possible    measures    for   the    prevention  groups  of  workmgmen,    by  employers, 

of   accidents,    medical    treatment,    etc.  and  by  the  last  two  conjointly.     The 

No.  96  contains    a    translation    of    the  final  chapter  treats  of  the  legal  status  of 

industrial  insurance   code   of   Germany,  benefit  and  relief  organizations.     Valu- 

1911.     No.  10  1  forms  a  study  by  P.  L.  a°*e    descriptive    material    and    many 

Hoffman   on    the    care    of    tuberculous  otherwise  unpublished  statistics. 

wage-earners  in  Germany  under  the  in-  ........  Workmen  S   insurance   and 

validity  insurance  act   of   January  i,  compensation  systems  in  Europe. 

S£Jfeg£?j8$&  No^t  Twenty-fourth  annual  report  of 

a  translation  of  the  Swiss  sickness  and  the  U.   S.   Commissioner  of  labor. 

g^£!STi&4SF?V!  Washington,    Govt.    print,    off., 

law   relating    to    insurance    of   salaried  I9°9-     .2  V.,  2749  p._ 

employees  in  Germany,    December  20,  Contains    extensive    information    on 

1911.     No.  in  on  labor  legislation  for  social    insurance    in    Austria.    Belgium, 

1912    contains    the    compensation    laws  France.  Germany,  Great  Britain.  Italy. 

passed  in  that  year.     No.  126  contains  a  Norway     Russia,    Spam,    and    Sweden. 

review  of  compensation  legislation  in  the  f  exts  °/  the  laws  on  compensation  for  in- 

United  States,  with  a  summary  of  the  dustnal  accidents  m  twenty-four  coun- 

operations  of  the  recent  laws;    complete  tnes- 

texts  of  all  United  States  laws,  including  ........  Children's  bureau.     Re- 


524       PRINCIPLES  OF  LABOR  LEGISLATION 


port  of  laws  relating  to  mothers' 
pensions  in  the  United  States, 
Denmark,  and  New  Zealand, 
1914.  (Its  pub.,  no.  7.)  Wash- 
ington, Govt.  print,  off.,  1914. 
102  p. 

History  and  texts  of  laws,  with  concise 
report  of  their  operation. 

Treasury      department. 

Public  health  service.  Health 
insurance;  its  relation  to  the 
public  health.  (Public  health  bul- 
letin no.  76,  B.  S.  Warren  and 
Edgar  Sydenstricker.)  Washing- 
ton, Goyt.  print,  off.,  1916.  76  p. 

Searching  statistical  study  of  economic 
conditions  conducing  to  sickness,  ade- 
quacy of  existing  provisions  for  care  and 
relief,  benefits  of  universal  health  in- 
surance. 

Van  Doren,  Durand  Halsey. 
Workingmen's  compensation  and 
insurance.  New  York,  Moffat, 
Yard,  1918.  viii,  332  p. 

Well  written  stimulating  discussion  of 
the  history  and  practice  of  workmen's 
compensation,  together  with  current 
problems.  Special  attention  to  insurance 
leads  to  conclusion  in  favor  of  state 
funds. 

Wisconsin.     Industrial  commis- 


sion. Report  on  old  age  relief. 
Madison,  1915.  76  p. 

Study  of  the  condition  of  the  aged  in 
Wisconsin,  with  suggestions  for  volun- 
tary state  insurance.  Contains  a  de- 
scription of  foreign  systems  of  old  age 
relief. 

Insurance  investigation 

committee.  Report.  Madison, 
1907.  Majority  report  of  the 
senate  committee  on  the  practi- 
cability of  government  and  state 
insurance,  iv,  52  p.  Minority 
report  of  the  senate  committee 
on  the  practicability  of  gpvejn- 
ment  and  state  insurance,  ii,  18  p. 
(Printed  separately  but  bound  in 
back  of  joint  committee  report.) 

Majority  report  gives  arguments  for 
and  against  state  life  insurance,  and 
recommends  postponement.  Minority 
report  makes  a  vigorous  argument  for 
immediate  steps  toward  establishing 
state  life  insurance. 

Wood  bury,  Robert  M.  Social  in- 
surance; an  economic  analysis. 
New  York,  Holt,  1917.  171  p. 

Finds  that  the  possible  disadvantages 
of  economic  burden,  decrease  in  thrift, 
and  increase  in  accidents,  are  relatively 
unimportant  and  are  outweighed  by  the 
gains  through  compulsory  insurance. 


IX.    ADMINISTRATION 


American  association  for  labor 
legislation.  American  labor 
legislation  review.  Quarterly, 
1911- 

Issues  which  have  dealt  especially  with 
administration  are  v.  2,  no.  4,  Dec.,  1912, 
"Immediate  legislative  program";  v.  3, 
no.  4,  Dec.,  1913,  "Administration  of 
labor  laws";  v.  7.  no.  2,  June,  1917, 
"Labor  law  administration  in  New 
York";  v.  9,  no.  3,  Sept.,  1919,  "The 
peace  treaty  and  the  labor  legislation 
program." 

American  bar  association.  Spe- 
cial committee  on  legislative 
drafting.  Report.  (Senate  doc. 
262,  63d  Cong.,  2d  sess.)  Wash- 
ington, Govt.  print,  off.,  1913. 

Andrews,  John  B.,  and  Andrews, 
Irene  Osgood.  Scientific  stand- 
ards in  labor  legislation.  (Amer- 
ican labor  legislation  review, 
June,  1911,  v.  i,  no.  2:123-134.) 
Defects  of  early  legislation  and  ad- 
vantages of  advisory  board  method. 


Bourgeois,  Leon.  The  interna- 
tional organization  of  social  poli- 
cies. (American  labor  legislation 
review,  March,  1914,  v.  4:186- 
202.) 

Necessity  for  international  cooperation 
in  labor  legislation. 

Brown,  Edward  F.  The  efficiency 
of  present  factory  inspection 
machinery  in  the  United  States. 
(American  labor  legislation  re- 
view, Feb.,  1013,  v.  3:24-28. 

Inadequacy  of  then  existing  adminis- 
trative agencies. 

Calder,  John.  Scientific  accident 
prevention.  (American  labor  leg- 
islation review,  Dec.,  1911,  V.  I, 
no.  4:14-24.) 

Emphasizes  need  for  cooperation  be- 
tween employer,  employee,  an^  e.igineer- 
ing  expert. 

Commons,  John  R.  Labor  and 
administration.  New  York,  Mac- 
millan,  1913.  vii,  431  p. 


BIBLIOGRAPHY 


525 


Essays  on  various  labor  questions,  the 
last  in  the  book  taking  up  the  subject  of 
administration  in  connection  with  the 
Wisconsin  workmen's  compensation  act. 

The  industrial  commission 

of  Wisconsin.  ^  (American  labor 
legislation  review,  Dec.,  1911, 
V.  I,  no.  4:61-69.) 

Principles  of  commission  plan. 

........  How  the  Wisconsin  indus- 
trial commission  works.  (Amer- 
ican labor  legislation  review,  Feb., 
1913,  v.  3:9-14.) 

Operation  of  commission  plan. 

Gettemy,  Charles  F.  The  Massa- 
chusetts bureau  of  statistics, 
1869-1915;  a  sketch  of  its  his- 
tory, organization,  and  functions, 
together  with  a  list  of  its  publica- 
tions and  illustrative  charts. 
Boston,  1915.  115  p. 

Written  by  the  director  in  connecti9n 
with  the  exhibit  of  the  bureau  of  statis- 
tics at  the  Panama-Pacific  exposition. 
Goodnow,  Frank  J.  Comparative 
administrative  law;  an  analysis  of 
theadministrativesystems,  nation- 
al and  local,  of  the  United  States, 
England,  France,  and  Germany. 
New  York,  Putnam,  1897.  2  v. 

Detailed  comparative  account  of  the 
organization  and  working  of  the  admin- 
istration in  these  countries,  describing 
also  the  relations  between  the  adminis- 
trative, judicial,  and  legislative  branches 
of  government. 

International  association  for 
labor  legislation.  Publications. 

In  addition  to  the  Bulletin  of  the 
international  labor  office,  published 
monthly  in  English,  in  French,  and  in 
German,  the  fifteen  national  sections, 
including  that  in  America,  issue  periodi- 
cally reports  on  labor  legislation  and  its 
administration. 

Kaiser,  John  Boy n ton.  Law,  leg- 
islative, and  municipal  reference 
libraries.  Boston,  Boston  book 
co.,  1914. 

Comprehensive  exposition  of  the  legis- 
lative drafting  research  movement. 

Kingsbury,  Susan  M.  (cd.).  La- 
bor laws  and  their  enforcement, 
with  special  reference  to  Massa- 
chusetts. New  York,  Longmans, 
Green,  1911.  xxii,  419  p. 

Historical  and  critical  studies  on  the 
administration  of  labor  laws  in  Massa- 
chusetts, special  chapters  being  devoted 
to  woman  and  child  labor  and  employ- 
ment offices. 


McNeill,  Joseph  H.  The  Massa- 
chusetts board  of  boiler  rules. 
(American  labor  legislation  re- 
view, Dec.,  1911,  v.  i,  no.  4:70- 

Description  of  the  joint  board  plan 
and  its  operation. 

United  States.  Report  on  condi- 
tion of  woman  and  child  wage- 
earners  in  the  United  States. 
(Senate  doc.  645,  6ist  Cong., 
2d  sess.)  V.  19,  "  Labor  laws  and 
factory  conditions."  Washing- 
ton, Govt.  print,  off.,  1912. 
1125  p. 

Summary  of  laws  on  child  labor, 
safety,  health,  and  comfort,  and  study 
of  their  enforcement. 

Senate  hearings  on  a  legis- 
lative drafting  bureau  and  legis- 
lative reference  division  of  the 
library  of  Congress.  (Senate 
rept.  no.  1271,  62d  Cong.,  3d 
sess.)  Washington,  Govt.  print, 
off.,  1911. 

Testimony  of  experts  from  all  parts 
of  the  country. 

Bureau  of  labor  statis- 
tics. Bulletins.  Washington, 
Govt.  print,  off.,  1895- 

Espeaally  concerned  with  administra- 
tion of  labor  legislation  are:  No.  142, 
"Administration  of  labor  laws  and  fac- 
tory inspection  in  certain  European 
countries,"  George  M.  Price;  No.  211, 
"Labor  laws  and  their  administration  in 
the  Pacific  states,"  Hugh  S.  Hanna;  No. 
254,  "  International  labor  legislation  and 
the  society  of  nations,"  Stephan  Bauer. 

Monthly      labor     review. 

Washington,    Govt.    print,    off., 
19*5- 

Reviews  reports  of  federal,  state, 
and  foreign  bureaus  administering  labor 
laws. 

Children's  bureau.  Pub- 
lications.      Washington,     Govt 
print,  off.,  1913- 

Issues  give  investigations  of  adminis- 
tration of  child  labor  laws  in  Connecti- 
cut, New  York,  Maryland,  and  other 
states. 

Commission  on  indus- 
trial relations.  Final  report. 
Washington,  1915.  448  p.  "Re- 
port of  commissioners  John  R. 
Commons  and  Florence  J.  Ham- 
man,"  p.  307-403- 

Breakdown  of  existing  labor  laws  and 
proposals  for  securing  more  thorough 
enforcement. 


TABLE   OF   CASES    CITED 


In  the  following  table  of  cases,  wherever  possible,  the  refer- 
ence to  the  official  (state,  circuit  court,  or  United  States)  re- 
port is  given  first;  for  the  convenience  of  those  to  whom  the 
official  reports  are  inaccessible,  references  to  the  unofficial 
(sectional,  federal,  supreme  court,  etc.)  reports  are  added. 

Aberthaw  Construction  Co.  v.  Cameron,  194  Mass.  208,  80  N.  E. 

478  (1907) 104 

Adair  v.  United  States,  208  U.  S.  161,  28  Sup.  Ct.  277  (1908) 113 

Adams  v.  Brenan,  177  111.  194,  52  N.  E.  314  (1898) 180 

Adams  v.  Tanner,  244  U.  S.  590,  37  Sup.  Ct.  662  (1917) 296 

Aikens  v.  Wisconsin,  195  U.  S.  194,  25  Sup.  Ct.  3  (1904) 97 

Albro  J.  Newton  Co.  v.  Erickson,  70  Misc.  291,  126  N.  Y.  Supp. 

949  (1911) 105 

Allis-Chalmers  Co.  v.  Iron  Molders,  150  Fed.  155  (1906) ;  166  Fed. 

45  (1908) in 

Almand  v.  Scott,  80  Ga.  95,  4  S.  E.  892  (1888) 64,  65 

American  Steel  &  Wire  Co.  v.  Wire  Drawers,  90  Fed.  598  (1898) .  in 
Arkansas  Stave  Co.  v.  State,  94  Ark.  27,  125  S.  W.  1001  (1910). .  51 

Arthur  v.  Oakes,  n  C.  C.  A.  209,  63  Fed.  310  (1894) 45,  106 

Atchison,  T.  &  S.  F.  R.  Co.  v.  Gee,  139  Fed.  582  (1905) 109 

Atkin  v.  Kansas,  191  U.  S.  207,  24  Sup.  Ct.  124  (1903) 217,  263 

Atlanta  v.  Stein,  in  Ga.  789,  36  S.  E.  932  (1900) 180 

Avent-Beattyville  Coal  Co.  v.  Commonwealth,  96  Ky.  218,  28 

S.  W.  502  (1894) 29 

Bailey  v.  Alabama,  219  U.  S.  219,  31  Sup.  Ct.  145  (1910) 43,  44 

Baltimore  &  O.  R.  Co.  v.  Interstate  Commerce  Commission,  221 

U.  S.  612,  31  Sup.  Ct.  621  (1911) 264 

Barnes  v.  Berry,  157  Fed.  883  (1908) 107,  117 

Barnes  v.  Typographical  Union,  232  111.  402, 424,  83  N.  E.  932,  940 

(1908) no 

Barr  v.  Essex  Trades'  Council,  53  N.  J.  Eq.  101,  30  Atl.  881  (1894)  98 
Bausbach  v.  Rieff,  237  Pa.  482,  85  Atl.  762  (1912). 105 


528       PRINCIPLES  OF  LABOR  LEGISLATION 

Beattie  v.  Callanan,  67  App.  Div.  14,  73  N.  Y.  Supp.  518;  82  App. 

Div.  7,  81  N.  Y.  Supp.  413  (1901-3) 105 

Beck  v.  Railway  Teamsters,  118  Mich.  497,  77  N.  W.  13  (1898). .no 

Beekman  v.  Marsters,  195  Mass.  205,  80  N.  E.  817  (1907) 109 

Berry  v.  Donavan,  188  Mass.  353,  74  N.  E.  603  (1905) 98,  104 

Bixby  v.  Dunlap,  56  N.  H.  456  (1876) 109 

Blanchard  v.  District  Council,  78  N.  J.  737,  71  Atl.  1131  (1909). .104 

Booth  v.  Burgess,  72  N.  J.  Eq.  181,  65  Atl.  226  (1906) 104 

Bowman  v.  Bradley,  151  Pa.  St.  351,  24  Atl.  1062  (1892) 65 

Boyer  v.  Western  Union,  124  Fed.  246  (1903) 114 

Brace  v.  Evans,  5  Pa.  Co.  Ct.  163  (1888) 102 

Brennan  v.  United  Hatters,  73  N.  J.  729,  65  Atl.  165  (1906) 104 

Brown  v.  Piper,  91  U.  S.  37  (1875) 461 

Bunting  v.  Oregon,  243  U.  S.  246,  37  Sup.  Ct.  435  (1917) 268 

Burnetta  v.  Marceline  Coal  Co.,  180  Mo.  241,  79  S.  W.  136  (1906)  .117 

Butterfield  v.  Forester,  n  East  60  (England,  1809) 390 

Butterick  Pub.  Co.  v.  Typographical  Union,  50  Misc.  i,  100  N.  Y. 

Supp.  292  (1906) in 

Casson  v.  Mclntosh,  199  Mass.  443,  85  N.  E.  529  (1908) 104 

Chaffee  v.  United  States,  18  Wall.  516  (1873) 492 

Chase  v.  McDonnell,  24  111.  237  (1860) 65 

Chicago,  B.  &  Q.  R.  Co.  v.  McGuire,  219  U.  S.  549,  31  Sup.  Ct.  259 

(1911) 34,  458 

Chicago,  R.  I.  &  P.  R.  Co.  v.  Arkansas,  219  U.  S.  453,  31  Sup.  Ct. 

275  (1911) 377 

Cleveland  v.  Clements  Bros.  Construction  Co.,  67  Ohio  St.  197 

(1902) 180 

Clyatt  v.  United  States,  197  U.  S.  207,  25  Sup.  Ct.  429  (1904). .  .37,  39 
Cohen  v.  Garment  Workers,  35  Misc.  748,  72  N.  Y.  Supp.  341 

(1901) 108 

Cohn  &  Roth  Electrical  Co.  v.  Bricklayers,  92  Conn.  161,  101  Atl. 

659  (1917) 104 

Commonwealth  v.  Beatty,  15  Super.  Ct.  (Pa.)  5  (1900) 245 

Commonwealth  v.  Hamilton  Mfg.  Co.,  120  Mass.  383  (1876). . .  .244 

Commonwealth  v.. Hunt,  4  Metcalf  in  (1842) 94 

Commonwealth  v.  Lancaster  Mills,  212  Mass.  315,  98  N.  E.  864 

(1912) 59 

Conners  v.  Connolly,  86  Conn.  641,  86  Atl.  600  (1913) 104 

Connolly  v.  Union  Sewer  Pipe  Co.,  184  U.  S.  540,  22  Sup.  Ct.  431 

(1902) 477 

Coppage  v.  Kansas,  236  U.  S.  i,  35  Sup.  Ct.  240  (1915)  .30,  114,  119 
Cornellier  v.  Haverhill  Shoe  Mfrs.  Assn.,  221  Mass.  554,  109  N.  E. 

643  (i9I5) 104 


TABLE   OF   CASES   CITED  529 

Coronado  Coal  Co.  v.  United  Mine  Workers  (Circuit  Court  of 

Appeals,  1919) 121 

Ex  parte  Crane,  on  Habeas  Corpus,  Crim.  560  (California,  1914) .   85 
Cunningham  v.  Northwestern  Improvement  Co.,  44  Mont.  180, 

119  Pac.  554  (1911) 397 

Curran  v.  Gallen,  152  N.  Y.  33,  46  N.  E.  297  (1897) 105 

Cutting  v.  Cox,  19  Vt.  517  (1847) 65 

Danbury  hatters'  case.     See  Loewe  v.  Lawlor. 

Davis  v.  Mercer  Lumber  Co.,  164  Ind.  413,  73  N.  E.  899  (1905)  .357 

Davis  Machine  Co.  v.  Robinson,  41  Misc.  329,  84  N.  Y.  Supp.  837 

(1903) 109 

In  re  Debs,  158  U.  S.  564,  15  Sup.  Ct.  900  (1895) 96 

Delaware,  L.  &  W.  R.  Co.  v.  Switchmen,  158  Fed.  541  (1908) ...  107 
De  Minico  v.  Craig,  207  Mass.  593,  94  N.  E.  317  (1911)..  .103,  104 

Ex  partc  Dickey,  144  Cal.  243,  77  Pac.  924  (1914) 295 

Doremusy.  Hennessy,  176  111. 608,52  N.E.924,  54  N.  E.  524(1898)  98 
Dowd  v.  United  Mine  Workers,  148  C.  C.  A.  495,  235  Fed.  i  (1916)  121 

Ellis  v.  United  States,  206  U.  S.  246,  27  Sup.  Ct.  600  (1907) 250 

Empire  Theater  Co.  v.  Cloke,  53  Mont.  183,  163  Pac.  107  (1917). in 
Employing  Printers'  Club  v.  Doctor  Blosser  Co.,  122  Ga.  509,  50 

S.  E.  353  (1905) 109 

Epperson^.  Howell,  28  Ida.  338,  154  Pac.  621  (1916) 317 

Erdman  v.  Mitchell,  207  Pa.  79,  56  Atl.  327  (1903) 105 

Erie  R.  Co.  v.  New  York,  233  U.  S.  671,  34  Sup.  Ct.  756  (1914) 

265,  272 
Evansville  Hoop  and  Stave  Co.  v.  Bailey,  43  Ind.  App.  153,  84 

N.  E.  549  (1908) 353 

Everett-Waddey  Co.  v.  Typographical  Union,  105  Va.  188,  53  S.  E. 

273  (1906) in,  112 

Farwell  v.  Boston  &  W.  R.  Co.,  4  Metcalf  (Mass.)  49  (1842)  .388,  389 

Fell  v.  Berry,  124  App.  Div.  336,  108  N.  Y.  Supp.  669  (1907) 117 

Fiske  v.  People,  188  111.  206,  58  N.  E.  985  (1900) 180 

Florida  Central  R.  Co.  v.  Reynolds,  183  U.  S.  471,  22  Sup.  Ct.  176 

(1902) 492 

Folsom  v.  Lewis,  208  Mass.  336,  94  N.  E.  316  (1911) 104 

Foster  v.  Retail  Clerks,  39  Misc.  48,  78  N.  Y.  Supp.  860  (1902)  98 

108,  in 

Frank  v.  Herold,  63  N.  J.  Eq.  443,  52  Atl.  152  (1901) 109,  112 

Franklin  v.  United  Railways  &  Electric  Co.  of  Baltimore,  Balto. 

Common  Pleas  Ct.,  April  27,  1904 397 

Franklin  Union  v.  People,  220  111.  355,  77  N.  E.  176  (1906) no 


530       PRINCIPLES  OF  LABOR   LEGISLATION 

George  Jonas  Glass  Co.  v.  Glass  Bottle  Blowers,  72  N.  J.  Eq.  653, 
66Atl.  953  (1907);  7?N.  J.  Eq.  219,  79Atl.  262  (i9ii).io9,  no 

Godcharles  v.  Wigeman,  113  Pa.  St.  431,  6  Atl.  354  (1886) 244 

Goldfield  Mines  Co.  v.  Miners'  Union,  159  Fed.  500  (1908) 112 

Grant  Bros.  Construction  Co.  v.  United  States,  232  U.  S.  647,  34 

Sup.  Ct.  452  (1914) 73 

Greenlee  v.  Southern  R.  Co.,  122  N.  C.  977,  30  S.  E.  115  (1898). 375 
Grisson  v.  Pickett,  98  N.  C.  54,  3  S.  E.  921  (1887) 65 

Haley  v.  Chicago  &  N.  R.  Co.,  21  la.  15  (1866) 390 

Hall  v.  Johnson,  87  Ore.  21,  169  Pac.  515  (1917) no 

Hammer  v.  Dagenhart,  247  U.  S.  251,  38  Sup.  Ct.  529  (1918) 336 

Hammock  v.  Creekmore,  48  Ark.  264,  3  S.  W.  180  (1886) 64 

Hanson  v.  Innis,  211  Mass.  301,  97  N.  E.  756  (1912) 104 

Harrison  v.  Ricks,  71  N.  C.  7  (1874) 64 

Haskins  v.  Royster,  70  N.  C.  601  (1874) 109 

Hawkins  v.  Bleakly,  243  U.  S.  210,  37  Sup.  Ct.  255  (1917) 398 

Hitchman  Coal  &  Coke  Co.  v.  Mitchell,  202  Fed.  512  (1912);  245 

U.  S.  229,  38  Sup.  Ct.  65  (1917) 109,  113 

Holcombe  v.  Creamer,  231  Mass.  99,  120  N.  E.  354  (1918) 219 

Holden  v.  Alton,  179  111.  318,  53  N.  E.  556  (1899) 180 

Holden  v.  Hardy,  169  U.  S.  366,  18  Sup.  Ct.  383  (1898).  .27,  28, 

245,  266,  462,  464 

Hopper  v.  Haines,  71  Md.  64,  18  Atl.  29,  20  Atl.  159  (1889) 65 

House  Painters  v.  Feeney,  13  Pa.  Dist.  335  (1904) 105 

Hudson  v.  Cincinnati,  N.  O.  &  T.  P.  R.  Co.,  152  Ky.  711,  154 

S.  W.  47  (1913) 117 

Ideal  Mfg.  Co.  v.  Ludwig,  149  Mich.  133,  112  N.  W.  723  (1907) . .  no 
Inge  v.  Board  of  Public  Works  of  Mobile,  135  Ala.  187,  33  So.  678 

(1902) 180 

Interstate  Commerce  Commission  v.  U.  S.  ex  rel.  Humboldt  Steam- 
ship Co.,  224  U.  S.  474,  32  Sup.  Ct.  556  (1911) 20 

Iverson  v.  Dilno,  44  Mont.  270,  119  Pac.  719  (1911) 108 

Ives  v.  South  Buffalo  R.  Co.,  201  N.  Y.  271,  94  N.  E.  431  (1911) 

28,  397 

Jacobs  v.  Cohen,  183  N.  Y.  207,  76  N.  E.  5  (1905) 105,  117 

In  re  Jacobs,  98  N.  Y.  98  (1885) 367,  464 

Jeans  Clothing  Co.  v.  Watson,  168  Mo.  133,  67  S.  W.  391  (1902) .  108 
Jersey  Printing  Co.  v.  Cassidy,  63  N.  J.  Eq.  759,   53  Atl.  230 

(1902) 112 

Johnson  t>.  Goodyear  Mixing  Co.,  127  Cal.  4,  59  Pac.  304  (1899) . .   52 
Jones  v.  Van  Winkle,  131  Ga.  336,  62  S.  E.  236  (1908) in 


TABLE  OF  CASES  CITED  531 

Ex  parte  Jones,  71  W.  Va.  567,  77  S.  E.  1029  (1913) 21 

Josma  v.  Western  Steel  Car  &  Foundry  Co.,  249  111.  508,  94  N.  E. 

945  (1911) 3oi 

Journeymen  tailors'  case,  8  Mod.  (England,  1721) 93 

Kealey  v.  Faulkner,  18  (Ohio)  Superior  and  Common  Pleas  De- 
cisions 498  (1908) I02 

Kelly  v.  Rummerfield,  117  Wis.  620,  94  N.  W.  649  (1903) 65 

Kemp  v.  Div.  No.  241  Amal.  Ass'n  of  Street  and  Electric  Ry.  Em- 
ployees, 255  111.  213,  99  N.  E.  389  (1912) 105 

Keoleg  v.  Phelps,  80  Mich.  466,  45  N.  W.  350  (1890) 65 

Kimpton  v.  Broason,  45  Barb.  625  (1866) 35 

Knickerbocker  Ice  Co.  v.  Stewart  (U.  S.  Supreme  Ct.,  May  17, 

1920) 402 

Knoxville  Iron  Co.  v.  Harbison,  183  U.  S.  13,  22  Sup.  Ct.  i  (1901) .  33 

Knudsen  v.  Benn,  123  Fed.  636  (1903) no 

Kolley  v.  Robinson,  109  C.  C.  A.  247,  187  Fed.  415  (1911) no 

Kroger  Grocery  &  Baking  Co.  v.  Retail  Clerks,  250  Fed.  890  (1918)  96 

Larsen  v.  Rice,  100  Wash.  642,  171  Pac.  1037  (1918) 219 

Lenahan  v.  Pittson  .Coal  Mining  Co.,  218  Pa.  311,  67  Atl.  642 

(1907) 338 

Levy  v.  Rosenstein,  66  N.  Y.  Supp.  101  (1900) 112 

Lewis  v.  Detroit  Board  of  Education,  139  Mich.  306,  102  N.  W. 

756  (1905) 180 

Lindsay  &  Co.  v.  Montana  Federation  of  Labor,  37  Mont.  264,  96 

Pac.  127  (1908) 102,  108 

Lochner  v.  New  York,  198  U.  S.  45,  25  Sup.  Ct.  539  (1905) . .  268,  460 
Loewe  v.  Lawlor,  208  U.  S.  274,  28  Sup.  Ct.  301  (1908);  235  U.  S. 

522,  35  Sup.  Ct.  170  (1915) 96,  107,  108,  121 

Lohse  Patent  Door  Co.  v.  Fuelle,  215  Mo.  421,  114  S.  W.  997 

(1908) 108 

Louisville,  H.  &  St.  L.  R.  Co.  v.  Lyons,  155  Ky.  396,  159  S.  W.  971 

(1913) 338 

Low  v.  Reese  Printing  Co.,  41  Neb.  127,  59  N.  W.  362  (1894) — 269 

McLean  v.  Arkansas,  211  U.  S.  539,  29  Sup.  Ct.  206  (1909)  33,  53,  463 
Magee  v.  Chicago  &  N.  R.  Co.,  82  la.  249,  48  N.  W.  92  (1891) . .  .388 
Malette  v.  City  of  Spokane,  77  Wash.  205,  137  Pac.  496  (1913).  .218 

Marbury  v.  Madison,  i  Cranch  137  (1803) 23 

Marshall  &  Bruce  Co.  v.  Nashville,  109  Term.  495,  71  S.  W.  815 

(1902) 180 

Mathews  v.  People,  202  111.  389,  67  N.  E.  28  (1903) 300 

Matthews  v.  Shankland,  25  Misc.  604,  56  N.  Y.  Supp.i23  (1898) .  108 


532       PRINCIPLES  OF  LABOR  LEGISLATION 

Maxwell  v.  Reed,  7  Wis.  582  (1859) 217 

Miller  v.  Wilson,  236  U.  S.  373,  35  Sup.  Ct.  342  (1915) 246,  465 

Millett  v.  People,  117  111.  294,  7  N.  E.  631  (1886) 222 

Mills  v.  U.  S.  Printing  Co.,  99  App.  Div.  605,  91  N.  Y.  Supp.  185 

(1904) Io8 

Minneapolis,  St.  P.  &  S.  Ste.  M.  R.  Co.,  v.  R.  R.  Commission  of 

Wisconsin,  136  Wis.  146,  116  N.  W.  005  (1908) 379 

Minnesota  rate  cases.     See  Simpson  v.  Shepard. 

In  re  Morgan,  26  Colo.  415,  58  Pac.  1071  (1899) 266,  459,  464 

Mountain  Timber  Co.  v.  Washington,  243  U.  S.  219,  37  Sup.  Ct. 

260  (1917) 398 

Muller  v.  Oregon,  208  U.  S.  412,  28  Sup.  Ct.  324  (1908) 245,  462 

Murray  v.  South  Carolina  R.  Co.,  i  McMullen  385  (1841) 389 

National  Protective  Ass'n  of  Steamfitters  &  Helpers  v.  Gumming, 

170  N.  Y.  315,  63  N.  E.  369  (1002) 105 

Neal  v.  Brandon,  70  Ark.  79,  66  S.  W.  200  (1902) 65 

New  York  Central  R.  Co.  v.  White,  243  U.  S.  188,  37  Sup.  Ct.  247 

(iQi?) 398 

Noble  State  Bank  v.  Haskell,  219  U.  S.  104,  31  Sup.  Ct.  186  (1911)  28 

Noe  v.  Layton,  69  Ark.  551,  64  S.  W.  880  (1910) 65 

Northern  P.  R.  Co.  v.  Washington,  222  U.  S.  370,  32  Sup.  Ct.  160 
(1912) 266 

O'Brien  v.  People,  216  111.  354,  75  N.  E.  108  (1905) 105 

O'Neil  v.  Behanna,  182  Pa.  236,  37  Atl.  843  (1897) no,  in 

Otis  Steel  Co.  v.  Molders,  no  Fed.  698  (1901) no 

Parkinson  Co.  v.  Building  Trades'  Council,  154  Cal.  581,  98  Pac. 

1027  (1908) 100,  108 

Patterson  r.  Trades  Council,  11  Pa.  Dist.  500  (1902) 105 

Peel  Splint  Coal  Co.  v.  State,  36  W.  Va.  802,  15  S.  E.  1000  (1892)  29 
Pennsylvania  R.  Co.  v.  Ewing,  241  Pa.  581,  88  Atl.  775  (1913)..  .377 
Pennsylvania  R.  Co.  v.  International  Coal  Mining  Co.,  230  U.  S. 

184,  33  Sup.  Ct.  893  (1912) 20 

People  v.  Barondess,  133  N.  Y.  649,  31  N.  E.  240  (1892) 105 

People  v.  Chas.  Schweinler  Press,  214  N.  Y.  395,  108  N.  E.  639, 

(J9i5) 273,  276,  461,  463,  477 

People  v.  Elerding,  254  111.  579,  98  N.  E.  982  (1912) 247 

People  v.  Erie  R.  Co.,  198  N.  Y.  369,  91  N.  E.  849  (1910) 265 

People  v.  Ewer,  141  N.  Y.  129,  36  N.  E.  4  (1894) 230 

People  v.  Fisher,  14  Wendell  9  (1835) 94 

People  v.  Klinck  Packing  Co.,  214  N.  Y.  121, 108  N.  E.  278  (1915) 

281,  283 


TABLE   OF  CASES   CITED  533 

People  v.  Kostka,  4  N.  Y.  Crim.  429  (1886) 107 

People  v.  Lochner,  177  N.  Y.  145,  69  N.  E.  373  (1904) 268 

People  v.  McFarlin,  43  Misc.  591,  89  N.  Y.  Supp.  527  (1904) 105 

People  v.  New  York  C.  &  H.  R.  R.  Co.,  163  App.  Div.  79,  148 

N.  Y.  Supp.  495  (1914) 272 

People  v.  Radt,  15  N.  Y.  Crim.  174,  71  N.  Y.  Supp.  846  (1900) . .  108 
People  v.  Ruggles,  8  Johnson  (N.  Y.)  289,  5  Am.  Dec.  335 

(1811) 256 

People  v.  Schenck,  257  111.  384,  100  N.  E.  994  (1913) 363 

People  v.  Weinsheimer,  117  App.  Div.  603,  102  N.  Y.  Supp.  579 

(1907) 105 

People  v.  Williams,  189  N.  Y.  131,  81  N.  E.  778  (1907) 276,  459 

People  v.  Wilzig,  4  N.  Y.  Crim.  403  (1886) 107 

People  ex  rel.  Armstrong  v.  Warden  of  the  City  Prison  of  New 

York,  183  N.  Y.  223,  76  N.  E.  n  (1905) 295 

People  ex  rel.  Cossey  v.  Grout,  179  N.  Y.  417,  72  N.  E.  464 

(1909) 238 

People  ex  rel.  Williams  Eng.  &  Cont.  Co.  v.  Metz,  193  N.  Y.  148, 

85  N.  E.  1070  (1908) 263 

Pickett  v.  Walsh,  192  Mass.  572,  78  N.  E.  753  (1906) 104 

Pierce  v.  Stablemen's  Union,  156  Cal.  70,  103  Pac.  324  (1909) 

100,  108,  no 

Plant  v.  Woods,  176  Mass.  492,  57  N.  E.  ion  (1900) 104 

Pope  Motor  Car  Co.  v.  Keegan,  150  Fed.  148  (1906) in 

Priestly  v.  Fowler,  3  Meeson  &  Welsby  i,  6  (England,  1837) . .  387,  389 
Purvis  v.  Carpenters,  214  Pa.  348,  63  Atl.  585  (1906) 105 

Randall  v.  Ditch,  123  la.  582,  99  N.  W.  190  (1904) 65 

Reynolds  v.  Davis,  198  Mass.  294,  84  N.  E.  457  (1908) 104 

Riley  v.  Commonwealth,  232  U.  S.  671,  34  Sup.  Ct.  469  (1914).  .242 

Ex  parte  Riley,  94  Ala.  82,  10  So.  528  (1891) 43 

Ritchie  v.  People,  155  111.  98,  40  N.  E.  454  (1895) 245,  460,  464 

Ritchie  v.  Wayman,  244  111.  509,  91  N.  E.  695  (1910) ...  28,  246,  460 
Robertson  v.  Baldwin,  165  U.  S.  287,  17  Sup.  Ct.  326  (1897). ...  44 
Ruddy  v.  Plumbers,  79  N.  J.  467,  75  Atl.  742  (1910) 104 

St.  Germain  v.  Bakery  Workers,  97  Wash.  282,  166  Pac.  665 

(1917) IJ° 

St.  Louis  v.  Gloner,  210  Mo.  502,  109  S.  W.  30  (1908) in 

Schaezlein  v.  Cabaniss,  135  Cal.  466,  67  Pac.  755  (1901) 363 

Schlang  v.  Ladies'  Waist  Makers,  67  Misc.  221,  124  N.  Y.  Supp. 

289  (1910) 105 

Searle  Mfg.  Co,  v.  Terry,  56  Misc.  265, 106  N.  Y,  Supp.  438  (1905) 

105,  in 


534       PRINCIPLES  OF   LABOR   LEGISLATION 

Shaughnessy  v.  Jordan,  184  Ind.  499,  n  N.  E.  622  (1916) in 

Shoemaker  v.  Crawford,  82  Mo.  App.  487  (1900) 65 

Simpson  v.  O'Hara,  70  Ore.  261,  141  Pac.  158  (1914) 219 

Simpson  v.  Shepard,  230  U.  S.  352,  33 'Sup.  Ct.  729  (1913) 265 

Sinsheimer  v.  Garment  Workers,  59  N.  Y.  St.  503,  28  N.  Y.  Supp. 

321  (1894) 108 

Smith  v.  Alabama,  124  U.  S.  465,  8  Sup.  Ct.  564  (1888) 265 

Smith  v.  Atchison,  T.  &  S.  F.  R.  Co.,  39  Tex.  Civ.  App.  468,  87 

S.  W.  1052  (1905) 254 

Smyth  v.  Ames,  169  U.  S.  466,  18  Sup.  Ct.  418  (1897) 450 

Snow  Iron  Works  v.  Chadwick,  227  Mass.  382,  116  N.  E.  801 

(1917) 104 

Southern  Pacific  Co.  v.  Jensen,  244  U.  S.  205,  37  Sup.  Ct.  525 

(1917) 402 

Southern  R.  Co.  v.  Machinists,  in  Fed.  49  (1901) 109 

State  v.  Barba,  132  La.  768,  61  So.  784  (1913) 270 

State  v.  Brown  &  Sharpe  Mfg.  Co.,  18  R.  I.  16,  25  Atl.  246  (1892) 

29,  5i 

State  v.  Buchanan,  29  Wash.  602,  70  Pac.  52  (1902) 28,  245 

State  v.  Crowe,  130  Ark.  272,  197  S.  W.  4  (1917) 219 

State  v.  Dyer,  67  Vt.  690,  32  Atl.  814  (1894) 104 

State  v.  J.  J.  Newman  Lumber  Co.,  102  Miss.  802,  59  So.  923; 

103  Miss.  263,  60  So.  215  (1912) 269 

State  v.  Lange  Canning  Co.,  164  Wis.  228,  160  N.  W.  57  (1916). 286 

State  v.  Napier,  63  S.  C.  60,  41  S.  E.  13  (1902) 295 

State  v.  Nicholls,  77  Ore.  415,  151  Pac.  473  (1915) 282 

State  v.  Roberson,  136  N.  C.  587,  48  S.  E.  595  (1904) 295 

State  ex  rel.  Buell  v.  Frear,  146  Wis.  305,  131  N.  W.  832  (1911)  •  •  286 

State  ex  rel.  Mays  v.  Brown,  71  W.  Va.  519,  77  S.  E.  243 21 

State  ex  rel.  Yaple  v.  Creamer,  85  Ohio  St.  349,  97  N.  E.  602 

(1912) 463 

Steel  v.  Frick,  56  Pa.  St.  172  (1867) 64 

Steffes  v.  Motion  Picture  Operators,  136  Minn.  200,  161  N.  W. 

524  (1917) "i 

Sterling  v.  Union  Carbide  Co.,  142  Mich.  284,  105  N.  W.  755 

(1905) 338 

Stettler  v.  O'Hara,  69  Ore.  519,  139  Pac.  743  (1914);  243  U.  S. 

629,  37  Sup.  Ct.  475  (1917) 218,  247 

Stockwell  v.  United  States,  13  Wall.  531  (1871) 492 

Ex  parte  Stout  (Texas),  198  S.  W.  967  (1917) in 

Strafford  v.  Republic  Iron  &  Steel  Co.,  238  111.  371,  87  N.  E.  358 

(1909) 338 

Sun  Ptg.  &  Pub.  Ass'n  v.  Delaney,  62  N.  Y.  Supp.  750  (1900) . . .  108 
In  re  Sweitzer  (Oklahoma),  162  Pac.  1134  (1917) in 


TABLE   OF  CASES   CITED  535 

Taff  Vale  case,  70  L.  J.  K.  B.  95  (England,  1901) 123 

Taylor  v.  Bradley,  39  N.  Y.  129  (1868) 65 

In  re  Ten  Hour  Law  for  Street  Ry.  Corporations,  24  R.  I.  603,  54 

Atl.  602  (1902) 257 

Thomas  v.  Cincinnati,  N.  O.  &  T.  P.  R.  Co.,  62  Fed.  803 

(1894) 107 

Toledo,  A.  A.  &  N.  M.  R.  Co.  v.  Pennsylvania  Co.,  54  Fed.  730 

(1893) 102 

Truax  v.  Cooks  and  Waiters,  19  Ariz.  379,  171  Pac.  121  (1917) . .  in 

Truax  v.  Raich,  239  U.  S.  33,  36  Sup.  Ct.  7  (1915) 73 

Tunstall  ».  Steans  Coal  Co.,  195  Fed.  888  (1911) 112 

Union  Pacific  R.  Co.  v.  Ruef,  120  Fed.  102  (1903) in 

United  States  v.  Atchison,  T.  &  S.  F.  R.  Co.,  220  U.  S.  37,  31  Sup. 

Ct.  362  (1911) 264 

United  States  v.  Chicago,  M.  &  P.  S.  R.  Co.,  197  Fed.  624 

(1912) 264 

United  States  v.  Edgar,  i  C.  C.  A.  49,  48  Fed.  91  (1891) 72 

United  States  v.  Gay,  37  C.  C.  A.  46,  95  Fed.  226  (1899) 73 

United  States  v.  Kansas  C.  S.  R.  Co.,  121  C.  C.  A.  136,  202  Fed. 

828  (1913) 264 

United  States  v.  Norris,  255  Fed.  423  (1918) 96 

United  States  v.  Northern  Commercial  Co.  &  George  A.  Coleman 

(1918) ; 270 

United  States  v.  Southern  Pacific  Co.,  136  C.  C.  A.  351,  220  Fed. 
745  (1915) 264 

Vandalia  R.  Co.  v.  Public  Service  Commission  of  Indiana,  242 
U.  S.  255,  37  Sup.  Ct.  93  (1916) ^ 379 

Vandalia  R.  Co.  v.  Railroad  Commission  of  Indiana,  182  Ind.  382, 
101  N.  E.  85  (1913) 379 

Vegelahn  v.  Guntner,  167  Mass.  92,  44  N.  E.  1077  (1896) no 

Viemeister  v.  White,  179  N.  Y.  235,  72  N.  E.  97  (1904) 461 

Wabash  R.  Co.  v.  Hannahan,  121  Fed.  563  (1903) 107 

Walker  0..Cronin,  107  Mass.  555  (1871) 109 

Wenham  v.  State,  65  Neb.  394,  91  N.  W.  421  (1902) 245 

White  Mt.  Freezer  Co.  v.  Murphy,  78  N.  H.  398,  101  Atl.  357 

(1917) IIJ 

Willcut  &  Sons  Co.  v.  Driscoll,  200  Mass,  no,  85  N.  E.  897 

(1908) 104 

Williams  v.  Evans,  139  Minn.  32,  165  N.  W.  495  (1917) 2I9 

Williams  v.  Fears,  noGa.  584, 35  S.  E.  699;  179  U.  S.  270,  21  Sup. 

Ct.  128  (1900) 295 


536       PRINCIPLES  OF  LABOR  LEGISLATION 

Ex  parte  Williams,  158  Cal.  550,  in  Pac.  1035  (1910) 100,  no 

Wilson  v.  New,  243  U.  S.  332,  37  Sup.  Ct.  289  (1917) 266 

Wilson  v.  Stewart,  69  Ala.  302  (1881) 65 

Wiseman  v.  Tanner,  221  Fed.  694  (1915) 296 

Withy  v.  Bloem,  163  Mich.  419,  128  N.  W.  913  (1910) 247 

Wright  v.  Hoctor,  95  Neb.  342,  145  N.  W.  704  (1914) 180 

Wyeman  v.  Deady,  79  Conn.  414,  65  Atl.  129  (1906) 104 


INDEX 


Accident  prevention,  in  relation  to 
workmen's  compensation,  469. 

Accident  reporting,  need  for  system 
in,  325,  326;  laws,  326,  327; 
statistics,  328,  329. 

Action  of  debt,  used  in  enforcing 
labor  laws,  492 

Adamson  law,  142-143;  upheld, 
266. 

Administration,  in  relation  to  in- 
vestigation, 20,  23,  24,  81,  450, 
451;  improvements,  47;  of  mini- 
mum wage  laws,  205-210;  of  re- 
strictions on  hours  of  labor,  227, 
238-243;  of  child  labor  laws,  227, 
342-346;  of  workmen's  compen- 
sation laws,  394,  410,  411;  of 
health  insurance,  417-422;  of  old 
age  insurance,  432-434;  of  un- 
employment insurance,  445,  446; 
in  relation  to  legislation,  450,  466; 
unified  and  decentralized,  charts, 
470,  471;  cooperative  pressure 
in,  499,  500. 

Aeronauts,  examination  and  regis- 
tration of,  352,  372;  minimum 
age  limit,  372. 

Agricultural  holdings  act  (England), 
66. 

Agriculture,  workers,  61-65;  credit 
agencies,  67;  no  contract  labor 
law  needed  for,  72;  minimum 
wage  legislation,  189;  excluded 
from  hour  legislation,  234;  in  re- 
lation to  employment  offices,  298, 
302,  312;  accidents,  328,  329; 
child  labor,  335;  excluded  from 
workmen's  compensation  legisla- 
tion, 401.  See  also  Land. 

Alabama,  contract  labor  law,  43; 
agricultural  tenancy  law,  64,  68; 
picketing  illegal,  110;  concilia- 
tion and  arbitration,  137;  no 


limitation  of  women's  hours,  231. 
238. 

Alameda,  Calif.,  tax  to  provide  work 
for  the  unemployed,  317. 

Alaska,  conciliation  and  arbitra- 
tion, 138;  eight-hour  law  de- 
clared unconstitutional,  270;  min- 
ing regulations,  371;  workmen's 
compensation,  397;  old  age  pen- 
sions, 436;  mothers'  pensions, 
441. 

Alberta,  strike  in  mines,  171. 

Alien  contract  labor.  See  Induced 
immigration. 

Allegheny  City,  Pa.,  ten-hour 
strikes,  232. 

Alsace-Lorraine,  industrial  courts, 
87. 

Amalgamated  Society  of  Carpen- 
ters, out-of-work  benefits,  442. 

Amalgamated  Society  of  Engineers, 
out-of-work  benefits,  409. 

American  Association  for  Labor 
Legislation,  investigates  one  day 
of  rest  in  seven  laws,  281;  work 
on  accident  reporting,  327;  on 
occupational  disease  reporting, 
331;  on  workmen's  compensa- 
tion, 405,  411;  on  standards  for 
health  insurance,  427;  on  ad- 
ministration of  labor  laws,  452; 
organization,  454. 

American  Association  of  Public  Em- 
ployment Offices,  295. 

American  Federation  of  Labor,  ef- 
fect of  Dan  bury  hatters'  case  on, 
109;  opposes  compulsory  arbi- 
tration, 171;  opposes  eight-hour 
laws,  253;  opposes  child  labor, 
334;  investigates  workmen's  com- 
pensation administration,  410;  in 
relation  to  unemployment  in- 
surance, 442;  investigates  labor 
conditions,  453. 

American  Statistical  Association,  in- 


S38       PRINCIPLES  OF  LABOR  LEGISLATION 


dorses  standard  accident  report- 
ing schedule,  327. 

Anarchism,  development  of,  26. 

Anarchists,  forbidden  to  enter 
United  States,  69. 

Ankylostomiasis,  in  mining  indus- 
try, 331;  compensation  for,  396. 

Anthracite  coal  strike,  arbitration 
in,  148,  169. 

Anthrax,  330,  366;  compensation 
for,  396,  403. 

Apprentices,  Elizabethan  statute  of, 

41,  152. 

Apprenticeship,  as  unfree  status,  3, 
36;  characteristics,  41,  42,  54; 
in  relation  to  minimum  wage,  204, 
209,  214;  in  colonial  times,  333; 
Wisconsin  regulations  for,  473. 

Arbitration,  voluntary,  128-149; 
compulsory,  127,  149-160,  173; 
among  public  employees,  164, 
174. 

Argentina,  mediation  and  arbitra- 
tion, 136;  minimum  wage  law, 
194;  night  work  of  women,  274; 
restrictions  on  women's  work, 

347- 

Arizona,  convict  labor,  80;  mini- 
mum wage  law,  196;  hours  of 
labor  for  women,  239,  281;  child 
labor,  228;  hours  of  la  oof  in 
laundries,  electric  plants,  and  in 
plaster  and  cement  mills,  262; 
restrictions  on  women's  work, 
347;  old  age  pensions,  436. 

Arkansas,  coal  screening  law,  33; 
fines  from  employees,  59;  mini- 
mum wage,  205;  hours  of  labor 
in  saw  and  planing  mills,  262. 

Assignment  of  wages.     See  Wages. 

Assumption  of  risk,  13,  14,  390,  400; 
in  relation  to  child  labor ,  338 ;  in 
relation  to  safety,  358. 

Australasia,  eight-hour  day,  154; 
unions  in  public  employment, 
i?5,  179-  See  also  Australia, 
Melbourne,  New  Zealand,  South 
Australia,  Tasmania,  Victoria, 
Western  Australia. 

Australia,  state  loans  to  farmers,  67 ; 
contract  labor  law,  73;  literacy 
test  against  Chinese,  76;  arbi- 
tration legislation,  153-158,  162- 
168;  labor  situation,  154;  mari- 
time strike,  155;  sheep-shearers' 


strike,  155;  parties,  161,  162, 
165;  constitution,  165;  federal 
court  of  arbitration,  165-168; 
minimum  wage,  187-190,  198, 
206,  215;  old  age  pensions,  436, 
438.  See  also  Australasia,  Mel- 
bourne, New  Zealand,  South 
Australia,  Tasmania,  Victoria, 
Western  Australia. 
Austria,  wage  payment  laws,  52- 
54;  fines  from  employees,  59; 
agricultural  credit,  67;  emigra- 
tion from,  72;  legal  aid,  84;  in- 
dustrial courts,  87;  statistics  of 
strikes  and  lockouts,  125;  media- 
tion and  arbitration,  136;  coal 
mine  accidents,  259,  369;  private 
employment  offices,  296;  health 
requirements  for  industry,  321, 
355.  366;  health  insurance,  417; 
maternity  insurance,  423 ;  old  age 
pensions,  432;  widows  and  or- 
phans' insurance,  439;  represen- 
tation of  interests,  480;  adminis- 
tration, of  social  insurance,  481. 

B 

Bakeries,  workers  in,  54;  minimum 
wage,  189;  hours  of  labor,  262, 
268,  460;  Sunday  employment 
forbidden,  279;  health  regula- 
tions, 352,  496. 

Ballot,  struggle  for  secret,  5. 

Baltimore,  first  city  eight-hour  law, 

251- 

Bankruptcy  laws,  61. 

Barbers,  Sunday  employment  for- 
bidden, 279;  examination  and 
registration  of,  352. 

Bargaining,  power,  inequality  of,  9, 
28-34,  117,  217,  267. 

Bar-rooms,  payment  of  wages  in, 
52,  53- 

Bayonne,  N.  J.  conditions  in  oil 
stills,  285. 

Beet  sugar  industry,  hours  of  labor, 

221. 

Beggars,  professional,  forbidden  to 
enter  United  States,  69. 

Belgium,  wage  payment  law,  53 ; 
fines  from  employees,  59;  legal 
aid,  84;  industrial  courts,  87, 
480 ;  statistics  of  strikes  and  lock- 
outs, 125;  mediation  and  arbi- 


INDEX 


530 


tration,  136;  coal  mine  accidents, 
259»  369;  rest  periods  for  women, 
272;  night  work  for  women,  274; 
employment  offices,  312;  lead 
poisoning,  350,  356;  anthrax, 
366;  health  insurance,  416;  old 
age  insurance,  431,  436;  repre- 
sentation of  interests,  480.  See 
also  Ghent. 

Berne,  wage  payment  laws,  53,  54; 
conference  on  night  work  of 
women,  273;  vacations  for 
women,  285;  conference  on  poi- 
sonous phosphorus,  354. 

Bill  drafting,  methods  of,  466,  476, 
488-490. 

Bill  of  rights,  22. 

Bills  of  attainder,  prohibited  by 
constitution,  6. 

Black  Death,  effect  on  wages,  152. 

Blacklist,  in  relation  to  industrial 
courts,  89;  virtually  legal,  114; 
in  relation  to  boycott,  115;  legal 
in  England,  124. 

Blast  furnaces,  hours  of  labor,  221. 

Blue  laws  for  Sunday  observance, 
278. 

Bodeker,  Dr.,  on  German  accident 
insurance  system,  393. 

Boiler  explosions,  measures  against, 

359- 

Bootmaking,  minimum   wage,  189. 

Boston,  police  strike,  176;  Trades- 
Union  National  Convention,  231; 
association  of  employment  man- 
agers, 320. 

Bowley,  A.  L.,  on  regularization  of 
public  employment,  316. 

Box  industry,  minimum  wage,  191, 
202. 

Boycott,  as  used  against  intangible 
property,  96;  aim  of,  98;  legal  in 
California,  100,  108;  uncertainty 
cf  term,  102 ;  attitude  of  judiciary 
towards,  108;  primary  and  sec- 
ondary, 107;  legality  of,  112,  115; 
in  Clayton  anti-trust  act,  112;  in 
relation  to  blacklist,  115;  union 
responsibility  for,  127;  legal  in 
England,  124. 

Brandeis,  L.  P.,  briefs  supporting 
labor  legislation,  246,  276,  462. 

Brazil,  abolishes  slavery,  37. 

British  colonies,  tool  exemption 
laws,  49;  wage  preference,  61. 


See  also  Australia,  Canada,  India, 

South  Africa,  West  Indies. 
British  Columbia,  minimum  wage 

law,  195. 
Broken  Hill,  Australia,  strike  at, 

145. 

Building  trades,  hours  of  labor,  226. 
Bureaucracy,  in  administration  of 

labor  laws,  480. 
Burlingame  treaty,  75. 


California,  Pacific  railroad,  3,  374; 
wage  payment  law,  53,  85,  90; 
sanitary  requirements  for  labor 
camps,  55,  494;  opposes  Chinese 
immigration,  74;  convict  labor, 
80;  legalizes  strike  and  boycott, 
loo,  1 06,  108;  picketing  illegal, 
100;  minimum  wage,  197,  209; 
hours  of  labor  for  women,  241, 
246;  eight-hour  day,  251,  253; 
one  day  of  rest  in  seven,  280;  va- 
cations for  public  employees,  284; 
regulation  of  private  employ- 
ment offices,  294,  295;  occupa- 
tional disease  reporting,  331;  fac- 
tory ventilation  and  sanitation, 
363,  365;  workmen's  compensa- 
tion, 403,  412. 

Calumet,  copper  strike,  145. 

Canada,  head  tax  on  Chinese,  70, 
76;  excludes  Japanese  and  Hin- 
dus, 76;  industrial  disputes  in- 
vestigation act,  127,  151,  154, 158, 
160,  171,  172;  arbitration,  168; 
Bell  Telephone  Co.  industrial  dis- 
pute, 240;  employment  offices, 
295;  prohibition  of  poisonous 
phosphorus,  355;  old  age  insur- 
ance, 431 ;  government  life  insur- 
ance, 439.  See  also  New  Bruns- 
wick, Nova  Scotia,  Ontario, 
Quebec. 

Canadians,  French,  in  Massachu- 
setts textile  industry,  233. 

Canneries,  hours  of  labor,  241,  247; 
enforcement  of  labor  laws,  494. 

Cardiff,  Wales,  decasualization  of 
ship-repairers,  321. 

'Carlyle,  on  cash  nexus,  53. 

Casual  laborers,  in  Census,  62 ; 
casualization,  321 ;  excluded  from 
workmen's  compensation  legisla- 


PRINCIPLES  OP  LABOR  LEGISLATION 


540 

tion,    402;    included   in    British 
health  insurance  law,  418. 

Cement  industry,  hours  of  labor,  221. 

Chain    industry,    minimum    wage, 

IQI,  200,  211. 

Chase,  Justice,  on  slavery,  36. 
Chauffeurs,  examination  and  regis- 
tration of,  352. 
Chemical  industry,  hours  of  labor, 

221,  222. 

Chicago,  cooperage  industry  and 
convict  labor,  78 ;  Pullman  strike, 
139;  milk  wagon  drivers'  union, 
284;  private  employment  agen- 
cies, 292. 

Child  labor,  competitive  character, 
2,  68;  in  indentured  service,  41; 
in  agriculture,  62;  in  relation  to 
compulsory  arbitration,  169; 
minimum  wage,  197,  204,  209, 
473;  hours  of  labor,  226-230,  233; 
in  relation  to  contract,  230;  in 
relation  to  interstate  commerce, 
230;  night  work,  276;  age  re- 
quirements, 333-340;  in  relation 
to  tenement  house  manufacture, 
366;  safety  regulations,  473. 

Child  labor  legislation,  justified  by 
guardianship  power  of  state,  12; 
in  relation  to  commerce  and  po- 
lice powers,  15;  federal  legisla- 
tion, 230,  335-336.  346;  prob- 
lems of  enforcement,  342-346; 
character,  450;  cumulative  pen- 
alties, 491. 

Chinese,  as  strike  breakers,  3;  in 
Canada,  70;  in  Australia,  189; 
in  relation  to  minimum  wage,  211. 

Chinese  exclusion  laws.  See  Orien- 
tals, exclusion  of. 

Cigar  Makers'  Union,  unemploy- 
ment benefits,  442. 

Cigarmaking,  hours  of  labor,  226; 
in  tenement  workshops,  366. 

Citizenship  stage  of  labor  legisla- 
tion, 26. 

Civil  service,  in  relation  to  adminis- 
tration of  labor  laws,  486-488. 

Civil  War,  mentioned,  3,  5,  26,  37, 
227,  233,  252. 

Class  legislation,  labor  legislation 
considered  as,  27-30. 

Class  struggle  in  labor  legislation, 
26,  485,  500. 

Clayton  antitrust  act,  96,  112. 


Clerical  employment,  minimum 
wage,  189;  Saturday  half -holiday, 
278;  social  insurance,  418. 

Cleveland,  Ohio,  conciliation  court, 
89;  hours  on  street  railroads,  258. 

Cleveland,  President,  vetoes  literacy 
test,  76. 

Closed  shop,  legality  of  demand,  98, 
1 06,  114;  in  relation  to  damage 
suits,  107;  in  New  Zealand,  158; 
in  public  employment,  180.  See 
also  Collective  bargaining,  Open 
shop,  Trade  unions,  Union  pref- 
erence. 

Clothing  industry,  minimum  wage, 

189,   191,  211. 

Coal  mines.    See  Mining. 

Coal  screening  laws,  53,  463. 

Coke- works,  hours  of  labor,  221. 

Collective  bargaining,  in  relation  to 
labor  contract,  2;  history,  91- 
125;  as  restricting  liberty,  91,  92; 
as  conspiracy,  91,  93-101;  by 
capital,  92,  93;  by  labor,  93-125; 
true  kind  of,  116-120;  legal  dis- 
crimination, 113-116;  in  relation 
to  minimum  wage,  182;  repre- 
sentation of  interests,  483.  See 
also  Closed  shop,  Open  shop, 
Trade  unions,  Union  preference. 

Colonial  stage  of  labor  legislation, 
25,  26. 

Colora-do,  picketing  illegal,  no; 
compulsory  arbitration,  127,  151, 
154,  172:  coal  strike,  145;  mini- 
mum wage,  203,  207,  209;  hours 
of  labor  for  miners,  266,  267,  459; 
regulation  of  private  employment 
offices,  294;  safety  regulations, 
363;  industrial  commission,  471. 

Commerce,  regulated  by  govern- 
ment, 15. 

Commerce  power,  how  used,  15; 
indefinite  character,  16. 

Commission  plan,  as  applied  to 
safety,  359,  381,  469;  place  in 
governmental  system,  485.  See 
also  Industrial  commissions,  Rail- 
road commission  laws. 

Commutation  of  service,  37. 

Company  houses,  as  medium  of 
payment,  55. 

Company  stores,  in  relation  to  peon- 
age* 39!  character  of  legislation 
on,  55,  450. 


INDEX  541 

Competition,  in  relation  to  labor  Constitution,  guarantees,  natural 
legislation,  2,  68-8 1;  of  women  rights,  6;  in  relation  to  Congress, 
and  children,  2,  68,  186;  of  im-  6,22,23;  thirteenth  amendment, 
migrants,  2,  69-78,  186;  of  con-  3,  4,  32,  37,  38,  70,  103,  170; 
victs,  2,  78-81;  in  relation  to  doc-  fourteenth  amendment,  6,  7,  22, 
trine  of  conspiracy,  99;  in  rela-  38,  245,  246,  279,  282,  300.  See 
tion  to  minimum  wage,  186.  also  State  constitutions. 

Compressed  air  work,  health  haz-  Constitutionality  of  laws,  how  de- 
ards,  331;  health  regulations  for,  termined,  19,  24,  25,  27,  450, 
349, 351.  365, 37i;  included  under  458-465,  492;  of  labor  laws,  30, 
workmen'scompensation,396,403.  31,  51,  53;  of  compulsory  arbi- 

Comstock  silver  mines,  conditions  tration  laws,  170;  of  minimum 
in,  260.  wage  laws,  216-219;  of  laws 

Conciliation,  defined,  126;  board  regulating  hours  of  labor,  243- 
of  mediation  and,  141.  247,  262-271,  279,  282-284;  °f 

Conciliation  act  of  1867  (England),  laws  relating  to  employment  of- 
89;  of  1896  (England),  129.  fices,  295,  300;  of  laws  requiring 

Confectionery  industry,  minimum  examination  and  registration  of 
wage,  191,  202,  215;  rest  periods,  workers,  352;  of  workmen's  com- 
272.  pensation  laws,  397-400. 

Congress,  in  relation  to  constitu-  Consumers'  League,  obtains  half- 
tion,  6,  22,  23;  in  relation  to  holiday  for  salesgirls,  277;  inves- 
police  power,  17;  in  relation  to  tigates  labor  conditions,  453; 
thirteenth  amendment,  38;  in  publishes  L.  D.  Brandeis'  brief 
relation  to  contract  labor  laws,  in  Mullery.  Oregon,  461. 
44,71;  treatment  of  seamen,  44,  Contagious  disease,  as  reason  for 
45,373;  railwaymen,  45, 374,  378;  excluding  immigrants,  69;  as 
literacy  test,  76;  postal  employees,  reason  for  exclusion  from  certain 
176;  minimum  wage  bills,  197;  occupations,  352. 
hours  of  labor,  249,  264-266;  Continuous  industries,  hours  of  la- 
poisonous  phosphorus  prohibi-  bor,  254,  279,  281,  284. 
tion,  324,  355;  child  labor  bill,  Contract,  in  relation  to  intangible 
346;  establishes  Bureau  of  Mines,  property,  I,  95;  interference  with, 
370;  health  and  safety  legislation,  6,  31,  51,  52,  245-247,  262,  271; 
378;  workmen's  compensation,  development,  36;  croppers,  64, 
397 ;  represented  on  Industrial  65 ;  in  relation  to  labor  disputes, 
Commission,  455;  organized  la-  109. 

bor  and  capital  in,  487.     See  also   Contract  labor,  servile  characteris- 
Legislative.  tics,  36 ;  in  relation  to  peonage,  42. 

Connecticut,  fines  from  employees,    Contract  labor,  alien.     See  Induced 
59;  decisions  on  strikes,  1 04;  con-       immigration, 
ciliation    and    arbitration,    137;    Contractors' liens,  60,  61;  for  gov- 
child  labor,  227,  228,  333;   night       ernment  supplies,  249,  251. 
work  of  women,  275; ;  one  day  of   Contributory    negligence,    13,    14, 
rest  in  seven,  280;  childbirth  pro-       253,  390,  391,  400;  in  relation  to 
tection  of  women,  348;   factory       child  labor  legislation,  338.     See 
lighting,  360;  health  and  safety,       also  Employers'  liability,  Work- 
372.  men's  compensation. 

Conspiracy,  collective  bargaining  Convict  labor,  in  relation  to  labor 
treated  as,  91,  93-101,  170;  com-  contract,  2;  numbers  involved, 
mon  law  doctrine,  97;  modifica-  78;  industries  affected,  78;  in  re- 
tions,  98-101;  not  affected  by  lation  to  interstate  commerce,  79; 
Clayton  antitrust  act,  113;  in  legislation  on,  80. 
England,  123.  See  also  Collec-  Copenhagen,  employment  office, 
tive  bargaining,  Trade  unions.  312. 


542       PRINCIPLES  OP  LABOR  LEGISLATION 

Corporations,  own  towns,  56;  fur-  Dickson,  William  B.,  on  hours  of 

nish  insurance,  58;  historical  de-  steel  workers,  223. 

velopment,  93;    have  legal  per-  Diminishing  returns,  law  of,  in  re- 

sonality,  98;    distinguished  from  lation  to  industrial  fatigue,  224. 

trade  unions,  117.  Discharge,  employers'  right  to,  113- 

Council  of  National  Defense,  com-  116. 

rnittee  of,   mediates  in   railroad  District  of  Columbia,  wage  exemp- 

labor  dispute,  143.  tion  law,  48;  minimum  wage  law, 

Court  procedure,  in  administration  197;    eight-hour  law  for  women, 

of  workmen's  compensation  laws,  237;     hours   of   labor   on   public 

410.  works,  249;    hours  of  labor  for 

Courts.     See  Damage  suits,  Judi-  railwaymen,   254;    regulation   of 

ciary.  employment  offices,  294;    licens- 

Craft  gilds.     See  Gilds.  ing  of  stationary  engineers,  353. 

Credit  Foncier,  system  of  agricul-  See  also  Washington,  D.  C. 

tural  credit.  67.  Dockers,  decasualization,  320. 

Criminal  syndicalism,  a  felony,  102.  Domestic    service,    characteristics, 

Criminals,  forbidden  to  enter  United  54;    excluded  from  hour  legisla- 

States,  69.  tion,  234,  247;    from  child  labor 

Croppers,     agricultural     labor-ten-  legislation,  335;   from  workmen's 

ants,  63-66.  compensation  legislation,  401. 

Czechoslovakia,    health    insurance,  Dover,  N.  H.,  agitation  for  shorter 

417,  418,  419;    maternity  insur-  hours,  231. 

ance,  423;  old  age  pensions,  432.  Dredging,  hours  of  labor,  250. 

Dressing-rooms,  legislation  provid- 

D  ing,  363,  371. 

Due  process  of  law,  guaranteed  by 

Dallas,  Tex.,  hours  on  street  rail-  constitution,   6;  meaning  of,   9- 

roads,  258.  34;   in  relation  to  investigation, 

Damage  suits,  in  relation  to  closed  475,  479,  482. 

shop  strikes,    107;    influence  on  Duluth,    Minn.,    regularization    of 

trade     unionism,      121-122;      in  public  work,  316. 

English    trade    linion   law,    123-  Dust,  as  cause  of  occupational  dis- 

125.  ease,  330. 

Debt,  imprisonment  for.     See  Im-  -p 
prisonment  for  debt. 

Declaration  of  Independence,  equal-  Education,  in  relation  to  labor  con- 

ity  clause,  5,  6.  tract,  2;    in  relation  to  taxation, 

Delaware,  railroad  employees'  law,  n;    demand  for,  26;    in  relation 

45;    seats  for  women,  364;    en-  to  padrone  system,  47;  in  relation 

forcement  of  labor  laws,  494.  to  competition,   68;    in  relation 

Democracy,  in  relation  to  represen-  to    child    labor,    341.     See    also 

tatiori  of  interests,  208.  Industrial  education,  Vocational 

Denmark,  legal  aid,  84;   mediation  guidance. 

and    arbitration,    136;     employ-  Education  (choice  of  employment) 
ment  offices,  312;    prohibition  of  act,  1910  (England),  309. 
poisonous  phosphorus,  354;  health  Efficiency,   how  affected  by  mini- 
insurance,  416;  old  age  pensions,  mum   wage,    215;     by   hours   of 
436;     unemployment    insurance,  labor,  224. 
443.     See  also  Copenhagen.  Eight-hour  day,  in  Australasia,  154; 

Detroit,  Mich.,  hours  on  street  rail-  in  United  States,   221;    in  con- 

rpads,  258;    Employers'  Associa-  tinuous  industries,  222;   for  chil- 

tion,  339.  dren,  228;  in  public  employment, 

Development  act  of  1909  (England),  249,   262;    President   authorized 

S1^.  to  suspend  during  war,  250;  early 


INDEX 


543 


agitation  for,  252;  in  mines  and 
smelters,  253,  259;  in  plaster  and 
cement  mills,  262;  for  railroad 
employees,  142-143,  255;  in  fac- 
tories and  workshops,  260;  con- 
stitutionality, 262-271,  459. 

Electrical  industry,  accidents  in, 
328;  examinations  and  licenses, 
352. 

Elevator  operators,  examination 
and  registration  of,  352. 

Embroidery  industry,  minimum 
wage,  191. 

Emergency  work,  as  relief  for  un- 
employment, 313-3*5- 

Eminent  domain,  defined,  12,  13; 
differs  from  police  power,  14. 

Employees'  representation  in  man- 
agement, 177. 

Employer  and  employee  law.  31, 
32,  36. 

Employers'  advances,  39,  43. 

Employers'  associations,  as  controll- 
ing legislature,  24 ;  deal  with  wage 
bargain,  93,  118;  check  abuses 
of  trade  unionism,  119;  in  Eng- 
lish law,  123;  employment  of- 
fices of,  292;  in  relation  to  repre- 
sentation of  interests,  479-481. 

Employers'  liability  laws,  31,  387- 
392;  in  relation  to  payment  of 
benefits,  58 ;  in  relation  to  safety, 
356,  387;  character  of,  451.  See 
also  Assumption  of  risk,  Con- 
tributory negligence,  Fellow  ser- 
vant rule. 

Employment,  methods  of  finding, 
291,  297;  regularization  of,  319- 
322. 

Employment  agencies,  misrepre- 
sentation by,  39,  292. 

Employment  certificates  for  work- 
ing children,  344-345. 

Employment  offices,  in  relation  to 
padrone  system,  47;  private,  292- 
297,  472;  state  and  municipal, 
297-304;  federal  activities,  304- 
307;  European  national  systems, 
308-312;  for  juveniles,  309;  in 
relation  to  unemployment  in- 
surance, 445. 

Enforcement  of  labor  laws.  See 
Labor  legislation,  enforcement. 

Engineers,  hours  of  labor,  254. 

England.     See  Great  Britain. 


Epileptics,     forbidden     to     enter 

United  States,  (><;. 
Equality,  in  relation  to  labor  con- 
tract, 9;   before  the  law,  28-34. 
Erdman  act,  working  of,  139-  140. 
Europe,    humanitarian    movement 

in,  26;  war  in,  311,  312. 
Evidence,  rules  of,  in  enforcement 

of  labor  laws,  494,  495,  497. 
Ex  post  facto  laws  prohibited  by 

constitution,  6. 
Executive,  enforces  laws,  18-21;  in 

relation    to    investigation,    450- 

493- 

F 

Factory  act  of  1901  (England),  234. 
Factory    legislation,    81,    450-451; 

inspection,  8j,  452-453. 
Fair  wage  clauses  in  contracts,  13. 
Fall    River,    Mass.,    agitation    for 

shorter  hours,  226,  231. 
Family,  in  relation  to  status,  36. 
Fellow  servant  rule,  13,  14,  388,  AGO. 

See    also     Employers'     liability, 

Workmen's  compensation. 
Feudalism,  serfdom  connected  with, 

37- 
Fines,   as  deductions  from  wages, 

.57-59- 
Finland,  unemployment  insurance, 

4431     prohibition    of    poisonous 

phosphorus,  354. 
Fire,  protection  against,  359. 
Firemen,  excluded  from  eight-hour 

law,    251;     two-platoon    system, 

252;  hours,  on  railroads,  254. 
First  aid  kit,  provided  in  industrial 

establishments,    365;     in    mine^, 

370- 

Florida,  vagrancy  law,  39,  40;  con- 
tract labor  law,  44;  payment  of 
benefits  to  injured  employers,  58; 
no  limitation  of  women's  hours, 
233,  238. 

France,  abolishes  colonial  slavery, 
37;  wage  payment  law,  52,  53; 
anti-truck  law,  55;  fines  from  em- 
ployees, 59;  wage  preference,  6l ; 
agricultural  credit,  67;  industrial 
courts,  87-88,  481;  strikes  an«l 
lockouts,  125,  175,  176;  media- 
tion and  arbitration,  136;  pul>li- 
employment,  175,  178;  coopera- 
tive contracts,  181;  minimum 


544       PRINCIPLES  OF  LABOR  LEGISLATION 

wage  law,  193;  coal  mine  acci- 
dents, 259,  369;  night  work  of 
women,  274;  employment  of- 
fices, 297;  public  employment  as 
relief  for  unemployment,  318; 
protection  of  women,  348;  com- 
pressed air  work,  350;  lead  in- 
dustry, 350;  prohibition  of  poi- 
sonous phosphorus,  354;  glass 
blowing,  356;  anthrax,  366,  396; 
workmen's  compensation,  396; 
health  insurance,  416;  old  age 
insurance,  431,  432,  436;  govern- 
ment employees'  pensions,  437; 
government  life  insurance,  439; 
widows'  and  orphans'  insurance, 
440;  unemployment  insurance, 
443;  representation  of  interests, 
480,  48 1 ;  superior  council  of  la- 
bor, 480.  See  also  Lyons,  Paris. 

Freedom  of  speech,  guaranteed  by 
constitution,  6,  97;  in  relation  to 
unionism,  116. 

Fruit  preserving  industry,  rest  peri- 
ods, 272. 

Furniture  making,  minimum  wage, 

189,  211. 


Garnishment,  in  relation  to  wage 
exemption,  48,  82. 

Gas  plants,  hours  of  labor  in,  221. 

Geneva,  industrial  courts,  87,  88. 

Georgia,  contract  labor  law,  44; 
wage  exemption  law,  47,  48; 
wage  assignment  law,  50;  pay- 
ment of  damages  to  injured  em- 
ployees, 58;  Sunday  rest  law, 
224;  hours  of  labor  in  textile 
mills,  262;  regulation  of  private 
employment  offices,  295;  child 
labor,  334. 

German  Law  Protection  Society, 
S3- 

Germany,  wage  payment  law,  53; 
fines  from  employees,  59;  agri- 
cultural credit,  67;  emigration 
from,  72;  legal  aid  societies,  84; 
industrial  courts,  86-88,  136,  481 ; 
statistics  of  strikes  and  lockouts, 
125;  mediation  and  arbitration, 
136;  coal  mine  accidents,  259, 
369;  private  employment  offices, 
269;  public  employment  offices, 
312;  hotels  for  itinerant  workers, 


315;  public  work  to  meet  unem- 
ployment, 318;  maternity  in- 
surance, 348 ;  lead  poisoning,  350, 
356;  occupational  diseases,  351, 
396;  prohibition  of  poisonous 
phosphorus,  355;  anthrax,  366, 
396;  social  insurance,  391-394, 
417,  419,  420,  422,  423,  424,  440, 
443,  447;  mutual  trade  associa- 
tions, 394;  unemployment  in- 
surance, 443;  representation  of 
interests,  480,  481.  See  also 
Alsace  -  Lorraine,  Nuremberg, 
Prussia,  Rhine  territory. 

Ghent,  International  Exposition, 
address  by  Leon  Bourgeois,  448; 
system  of  unemployment  insur- 
ance, 443. 

Gilds,  in  relation  to  collective  bar- 
gaining, 92 ;  compared  with  trade 
unions,  92,  93;  methods  of  pro- 
duction, 387;  early  health  in- 
surance, 416. 

Glass  industry,  hours  of  labor,  222; 
night  work  of  children,  277;  safety 
regulations,  356. 

Gloucester,  N.  J.,  ten-hour  strikes, 
232. 

Glucose  industry,   hours  of  labor, 

221. 

Goldmark,  Josephine,  briefs  sup- 
porting labor  legislation,  246,  276. 

Good  will,  as  intangible  property, 
8,  95- 

Goole,  England,  decasualize  tion  of 
dockers,  321. 

Government,  may  use  force,  10,  u, 
20,21;  as  employer,  13;  branches 
of,  18-24;  as  interfering  in  wage 
bargain,  29.  See  also  Public  em- 
ployment. 

"Granger  laws"  for  railroad  regu- 
lation, 466. 

Granite  cutting  industry,  hours  of 
labor,  226. 

Gray,  Judge,  on  night  work  for 
women,  459. 

Great  Britain,  fair  wage  clauses  in 
contracts,  13;  slave  trade  abol- 
ished, 36;  tool  exemption  laws, 
49;  wage  payment  laws,  53; 
fines  as  deductions  from  wages, 
58;  landlord  and  tenant  law,  66; 
emigration  from,  72;  history  of 
collective  bargaining,  93,  123- 


INDEX 


545 


125,152;  statistics  of  strikes  and 
lockouts,  125;  history  of  volun- 
tary arbitration,  128-136;  board 
of  trade,  129,  191,  212,  215,  308, 
321;  history  of  wage  determina- 
tion, 152;  public  employment, 
175;  minimum  wage,  190-193, 
200,  206,  207,  211-216;  National 
Anti-Sweating  League,  190; 
health  of  munition  workers  com- 
mittee, 224,  225;  coal  mine  acci- 
dents, 259,  369;  Saturday  half- 
holiday,  278;  public  employment 
offices,  308-311;  public  work  for 
unemployed,  314,  316,  318;  ap- 
prentices sent  to  colonies,  333; 
children's  employment  certifi- 
cates, 340;  lead  poisoning,  350, 
35i»  363 »  396;  prohibition  of 
poisonous  phosphorus,  355;  an- 
thrax, 366,  396;  exchequer  court, 
389;  employers'  liability,  389, 391 ; 
workmen's  compensation,  395, 
396;  health  insurance,  417-424, 
428 ;  friendly  societies,  42 1 ;  ma- 
ternity insurance,  423-425;  old 
age  insurance,  431;  old  age  pen- 
sions, 436;  government  life  in- 
surance, 439;  unemployment  in- 
surance, 443-446;  out  of  work 
donations,  446;  trade  unionists, 
453;  industrial  council,  481.  See 
also  Goole,  Ireland,  Liverpool, 
London,  Macclesfield,  Manches- 
ter, Parliament,  Scotland,  Sun- 
dertand,  Swansea,  Wales. 

Great  Lakes,  unemployment  on,  315. 

Greece,  wage  payment  law,  52; 
emigration  from,  72. 

Greeley  Horace,  on  child  labor  legis- 
lation, 228. 

Greenbackism,  development  of,  26. 

Guardianship  of  state,  how  devel- 
oped, ii,  12;  differs  from  police 
power,  14. 

H 

Habeas  corpus,  writ  of,  guaranteed 

by  constitution,  6,  21. 
Hair   goods   industry,   anthrax  in, 

339- 

Hamilton,  Alexander,  indorses  child 
labor,  333. 

Hawaii,  contract  labor,  42,  43;  regu- 
lar wage  payment  law,  51;  work- 
35 


men's  compensation,  397;  moth- 
ers'pensions,  441. 

Head  tax  on  immigrants,  as  prop- 
erty qualification,  70. 

Health,  protected  by  immigration 
legislation,  69;  justifies  regula- 
tion of  women's  wages,  218;  effect 
of  long  hours,  223;  in  relation  to 
women's  work,  234,  236,  244- 
247,  346-348;  a  social  question, 
323-325;  protected  by  internal 
revenue  taxation,  355;  in  relation 
to  tenement  house  manufacture, 
366-368;  character  of  legislation, 
450. 

Health  insurance,  in  relation  to  oc- 
cupational disease,  354,  403;  his- 
tory, 415-417;  standards,  427. 

Heating,  in  factories,  361. 

Herbergen,  hotels  for  itinerant 
workers,  315. 

Higgins,  Justice,  on  minimum  wage, 
156. 

Holland.     See  Netherlands. 

Hollow-ware  industry,  minimum 
wage,  191. 

Homestead  laws,  character,  3,  26; 
purpose,  48,  49. 

Homeworkers,  included  in  health  in- 
surance, 418.  See  also  Tenement 
house  manufacture. 

Horseshoers,  examination  and  regis- 
tration of,  352. 

"Hotel  Liberty,"  Seattle,  315. 

Hotels,  workers  in,  54;  child  labor, 

335- 

Hours  of  labor,  how  regulated,  15; 
early  strikes,  26,  231,  232;  legis- 
lation on,  27,  221-286;  statis- 
tics, 221,  222;  for  men,  221,  247- 
271,  272,  278-281,  459-462;  for 
women,  230-247,  271,  273-278, 
459,  463,  473;  in  relation  to  ef- 
ficiency, 224;  in  relation  to  trade 
unions,  226;  for  children,  226- 
230,  233,  271,  273,  276,  473:  ad- 
ministration of  laws  regulating, 
238-243;  constitutionality,  243- 
247,  253,  262-271,  276,  281-284; 
character  of  legislation  on,  450. 

Humanitarian  stage  of  labor  legis- 
lation, 26. 

Humidity,  in  factories,  362. 

Hungary,  health  insurance.  417; 
maternity  insurance,  423. 


546       PRINCIPLES  OP  LABOR  LEGISLATION 


I 

Ice  industry,  hours  of  labor,  221. 

Iceland,  health  insurance,  416. 

Idaho,  wage  exemption  law,  48; 
state  loans  to  farmers,  67;  con- 
ciliation and  arbitration,  137; 
"right  to  work,"  317. 

Illinois,  railroad  employees'  law,  45; 
convict  labor,  80;  picketing  il- 
legal, no;  conciliation  and  arbi- 
tration, 137;  child  labor,  228, 
341 ;  hours  of  labor  for  women, 
235,  245,  246,  460,  464;  supreme 
court,  246,  363;  eight-hour  law, 
252;  public  employment  offices, 
300,  322 ;  regularization  of  indus- 
try, 322;  occupational  disease 
commission,  330,  371;  lead  poi- 
soning, 351;  safety  regulations 
for  factories,  358;  standards  of 
humidity,  362;  factory  ventila- 
tion, 362,  363;  safety  regulations 
for  mines,  370;  agencies  dealing 
with  labor,  468;  decentralized 
administration  of  labor  law,  chart, 
471. 

Immigration,  in  relation  to  com- 
petition, 2,  69-78;  increase  in,  71 ; 
change  in  race  composition,  71, 
72,  373;  proportion  of  skilled  to 
unskilled  workers,  73;  legal  aid, 
83;  American  compared  with 
Australian,  155;  supplies  cheap 
labor,  1 86. 

Immigration  Commission,  72,  455; 
studies  wages,  184. 

Imprisonment  for  debt,  26,  31,  47. 

Indentured  service,  characteristics, 
3.36,41,54;  abolition  demanded, 
26;  a  form  of  induced  immigra- 
tion, 70. 

India,  night  work  of  women,  274; 
child  labor,  337. 

Indiana,  wage  exemption  law,  48; 
wage  assignment,  50;  state  loans 
to  farmers,  67;  convict  labor,  80; 
picketing  lawful,  in;  concilia- 
tion and  arbitration,  137;  wom- 
en's daily  hours  unrestricted,  233, 
238;  railroad  commission,  378. 

Individualism,  in  constitutions,  19. 

Induced  immigrations,  as  unfree 
status,  3;  laws  against,  70-74; 
effects,  73. 


Industrial  Commission,  investigates 
labor  conditions,  455. 

Industrial  commissions,  origin,  468; 
functions,  472;  methods,  474; 
use  cumulative  penalties,  491. 

Industrial  congresses,  investigate 
labor  conditions,  453. 

Industrial  courts,  purpose,  86;  his- 
tory, 86,  87;  methods,  87,  88, 
182;  imitated  in  England,  128. 

Industrial  education,  effect  on  com- 
petition, 68;  Wisconsin  regula- 
tions, 473. 

Industrial  Relations  Commission, 
mentioned,  455. 

Industry,  character  of  modern,  i, 
50,323,324. 

Injunctions  against  striking,  106; 
in  Clayton  antitrust  act,  113; 
waning  power  of,  120. 

Inspection,  not  provided  for  in  earl}' 
factory  acts,  81;  of  child  labor, 
342-346;  of  mines,  370;  of  rail- 
roads, 375;  old  theory  of,  379; 
new  methods,  381,  492-498;  par- 
tisanship in  appointments,  486- 
488. 

Insurance,  in  relation  to  work  ac- 
cidents, 31;  in  relation  to  em- 
ployers' liability,  33;  furnished 
by  corporations,  58 ;  principle  of, 
383;  in  relation  to  workmen's 
compensation,  411-415;  in  ad- 
ministration of  labor  legislation, 
498-500;  voluntary  life,  439.  See 
also  Social  insurance,  Workmen's 
compensation. 

International  Association  for  Labor 
Legislation,  investigates  continu- 
ous industries,  422;  treaty  on 
night  work  for  women,  273;  ad- 
vocates Saturday  half-holiday, 
278;  obtains  prohibition  of  poi- 
sonous phosphorus,  354;  how  or- 
ganized, 453;  national  sections, 
454;  turns  over  certain  functions 
to  League  of  Nations  Interna- 
tional Labor  Office,  455. 

International  Labor  Conference, 
recommendation  to  regulate  im- 
migration, 78;  on  eight-hour  day, 
261,  457;  on  prohibiting  night 
work  of  women,  274,  457;  on  pro- 
hibiting night  work  of  children, 
276,  457;  on  abolishing  fee-charg- 


INDEX 


547 


ing  employment  agencies,  296; 
on  establishing  public  employ- 
ment offices,  457;  on  joint  com- 
mittees for  public  employment 
offices,  299;  on  national  co-or- 
dination of  employment  offices, 
304;  on  use  of  public  work  to 
meet  unemployment,  319;  on  pro- 
hibition of  child  labor  under  the 
age  of  fourteen,  337,  457;  on  ex- 
clusion of  children  under  eighteen 
and  women  from  dangerous  lead 
trades,  347,  457;  on  childbirth 
protection,  348,  457;  on  prohibi- 
tion of  poisonous  phosphorus,  355, 
457;  on  protection  against  an- 
thrax, 366,  457;  on  maternity  in- 
surance, 425;  on  unemployment 
insurance,  442;  on  government 
factory  inspection,  458;  on  gov- 
ernment health  service,  458;  or- 
ganized under  League  of  Nations, 
457 ;  first  annual  conference,  457- 

458- 

International  Labor  Office,  takes 
over  certain  functions  of  original 
voluntary  body,  455;  organiza- 
tion and  staff,  457. 

International  Labor  Organization, 
set  up  by  treaty  of  peace  with 
Germany,  456. 

International  Conference  on  Un- 
employment, recommendations, 

3T9 

International  Workingmen's  Asso- 
ciation, 26,  453. 

Interstate  commerce,  in  relation  to 
convict  labor,  79;  in  relation  to 
child  labor,  230,  335-336;  hour 
regulations,  255:  in  relation  to 
workmen's  compensation,  401. 

Interstate  commerce  commission, 
139,  468,  476;  in  relation  to 
railroad  employees,  255,  374*375; 
place  in  governmental  system, 
484. 

Interurban  railroads,  safety  regu- 
lations, 374- 

Invalidity  insurance.  See  Health 
insurance. 

Investigation,  in  relation  to  admin- 
istration, 23,  24,  449;  in  relation 
to  judiciary,  27,  458-465;  in  vol- 
untary arbitration,  127;  com- 
pulsory, 127;  in  relation  to  ex- 


ecutive, 450-453;  in  relation  to 
industrial  commissions,  466-479; 
procedure,  475;  character,  479. 

Iowa,  law  relating  to  insurance 
benefits  and  employers'  liability, 
33;  wage  exemption  law,  48;  wage 
payment  law,  52;  state  loans  to 
farmers,  67;  convict  labor,  80; 
no  limitation  of  women's  hours, 
233,  238. 

Ireland,  land  system,  66,  68:  land 
commission,  68;  statistics  of 
strikes  and  lockouts,  1 25;  employ- 
ment offices,  311, 

Irish  textile  workers  in  Massa- 
chusetts, 233. 

Iron  industry,  hours  of  labor,  221, 
223;  unemployment  insurance, 
444. 

Italians,  padrone  system  among,  46. 

Italy,  agricultural  credits,  67;  emi- 
gration from,  72;  industrial  courts, 
87,  480;  statistics  of  strikes  and 
lockouts,  125;  mediation  and  ar- 
bitration, 136;  cooperative  con- 
tracts, 181;  prohibition  of  poison- 
ous phosphorus,  355;  anthrax, 
366;  maternity  insurance,  424; 
old  age  insurance,  432;  govern- 
mental employees'  pensions,  437; 
government  life  insurance,  440; 
unemployment  insurance,  443; 
representation  of  interests,  480; 
superior  council  of  labor,  480. 


Japan,    coal    mine   accidents,    259, 
369;  child  labor,  337. 

Japanese,  exclusion  of.     See  Orien- 
tals, exclusion  of. 

Judiciary,  in  relation  to  police  pow- 
er, 17;  in  relation  to  legislative, 
18-20;  interprets  laws  and  con- 
stitutions, 19,  20;  authority,  22, 
23;  guided  by  opinions,  23,  25, 
28;  changing  opinions  on  labor. 
25-28;  in  relation  to  investiga- 
tion, 27.  458-465;  considers  la- 
bor legislation  class  legislation, 
29;  uses  theory  of  reasonable 
classification,  30,  31;  en: 
laws  on  deductions  from  \v 
57,  58:  (Mim'^ 'Vropper."  (14;  in 
relation  to  agricultural  labor  law, 


548       PRINCIPLES   OP  LABOR   LEGISLATION 


67,  68;  in  relation  to  contract 
labor  law,  72;  inadequacy  to 
secure  laborers'  rights,  81;  treat- 
ment of  collective  bargaining,  93- 
113.  See  also  Constitutionality. 
Jury  trial.  See  Trial  by  jury. 

K 

Kansas,  constitution,  6;  railway 
employees'  law,  45;  strikes  and 
lockouts  in  certain  industries  for- 
bidden, 173-174;  court  of  indus- 
trial relations,  173-174;  minimum 
wage,  209;  hours  of  labor  for 
women,  239;  eight-hour  day,  263; 
employment  agencies,  293. 

Kansas  City,  Mo.,  municipal  legal 
aid  bureau,  83. 

Kentucky,  abolishes  imprisonment 
for  debt,  47. 

Kettle,  Sir  Rupert,  on  voluntary 
arbitration,  128. 

King,  as  parens  patriae,  II,  12. 

Knights  of  Labor,  oppose  contract 
labor,  71;  indorse  eight-hour 
movement,  252;  oppose  child 
labor,  334;  investigate  labor 
conditions,  453. 


Labor  camps  regulated,  55. 

Labor  contract,  characteristics,  I, 
2,  4,  116;  in  relation  to  politics, 
4,  5;  in  relation  to  liberty  and 
property,  7-10;  in  relation  to 
equality,  9;  restrictions  on,  27; 
specific  performance,  32;  in  re- 
lation to  industrial  courts,  87. 

Labor  exchanges  act  of  1909  (Eng- 
land), 308-311. 

Labor  legislation,  relation  to  labor 
contract,  2,  10;  relation  to  tax- 
ing power,  II,  15;  relation  to 
police  power,  13-18;  stages,  25- 
28;  considered  as  class  legisla- 
tion, 28-30;  aims  at  equality, 
36;  relation  to  agriculture,  62, 
65-68;  relation  to  competition, 
68-8l;  exemptions  from,  239, 
337;  enforcement,  326,  449-453, 
490-498;  solidarism  in,  499-500. 
See  also  Administration,  Consti- 
tutionality. 


Labor  market,  right  of  access  to, 
8,  95,  96;  influences  on,  25. 

Labor,  Secretary  of,  mediation  work 
of,  144. 

Lace  industry,  minimum  wage,  191, 

211. 

Land,  in  relation  to  labor  market, 
2-4,  25;  laborers'  lien,  61.  See 
also  Agriculture. 

Landlord  and  tenant,  law  of,  66- 
68. 

Large  scale  production,  influence 
on  labor  market,  3,  25. 

Laundry  industry,  hours,  235,  247, 
262,  277;  child  labor,  277,  335. 

Lead  industry,  330,  331;  effect  on 
women,  347;  examination  of 
workers,  350,  351;  prohibition 
of  white  lead,  355;  washrooms 
and  dressing-rooms  for  workers, 
365;  character  of  legislation,  381 ; 
in  relation  to  workmen's  compen- 
sation, 403. 

Legal  aid,  societies,  81;  history,  82, 
83;  as  government  function,  84, 
85;  voluntary  defenders,  84. 

Legislation,  when  unconstitutional, 
19,  24,  25,  27,  450,  458-465,  492. 
See  also  Labor  legislation. 

Legislative,  in  relation  to  judiciary, 
18-20;  function,  22,  248,  467, 
487,  489;  investigates  labor  con- 
ditions, 455,  456;  compared  with 
industrial  commission,  475. 

Liberty,  in  relation  to  labor  con- 
tract, 7-10;  in  relation  to  prop- 
erty, 7,  8;  in  relation  to  police 
power,  15;  of  contract,  6,  31,  51, 
52,  244-247,  262,  271;  personal, 
in  relation  to  collective  bargain- 
ing, 91. 

Liens.  See  Contractors'  liens,  Me- 
chanics' liens. 

Lighting,  factory,  Oregon  require- 
ments, 360. 

Lime  industry,  hours  of  labor,  221. 

Limited  liability,  doctrine   of,   92, 

.93- 

Literacy  test,  for  immigrants,  69,  73, 
76,  77;  for  child  workers,  341. 

Liverpool,  juvenile  employment  of- 
fices, 310;  decasualization  of 
dock  labor,  321. 

"Living  in''  system,  53,  54. 

Lockouts,  in  relation  to  executive, 


INDEX 


549 


21 ;  in  England,  123,  128;  in- 
creased number,  124,  125;  in 
arbitration  proceedings,  127;  com- 
pared with  strikes,  150;  forbid- 
den in  certain  industries  in  Kan- 
sas, 173. 

London,  legal  aid,  84;  police 
strike,  176;  conference  on  hours 
in  continuous  industries,  222; 
central  unemployed  body,  308; 
juvenile  employment  offices,  310; 
provision  of  work  for  unemployed, 

314- 

Longshoremen,  in  relation  to  work- 
men's compensation,  402.  See 
also  Dockers. 

Los  Angeles  County,  Calif.,  public 
defender,  84. 

Louisiana,  contract  labor  law,  44; 
hours  of  labor  for  firemen,  262, 
269;  accident  reporting,  327. 

Lowell,  Mass.,  factory  women's 
agitation,  231. 

Lumbering,  mechanics'  lien  in,  60. 

Lunatics,  forbidden  to  enter  United 
States,  69. 

Luxemburg,  prohibition  of  poison- 
ous phosphorus,  355;  health  in- 
surance, 417;  maternity  insur- 
ance, 423;  old  age  and  invalidity 
insurance,  432. 

Lyons,  industrial  court,  87. 

M 

Macclesfield,  England,  conciliation 

board,  128. 
McPherson,   Judge,   on   picketing, 

1 10. 

Madison,  James,  cited,  16. 
Magna  Charta,  mentioned,  28. 
Maine,  peonage,  39;  contract  labor 

law,  43;  railroad  employees'  law, 

45;    child  labor,  227;  limitations 

on  women's  hours,  232. 
Malice,  in  labor  cases,  98,  99. 
Manchester,  England,  decasualiza- 

tion  of  cloth  porters,  321. 
Manchester,   N.   H.,  agitation  for 

shorter  hours,  231. 
Manila,    P.  I.,   boiler   regulations, 

359- 

Manitoba,  minimum  wage  law,  195. 
Manor,  lord  of,  determines  wages, 

152. 


Manufactureres*  associations,  con- 
trol prices,  93,  118. 

Maryland,  Justice  Chase,  36;  anti- 
truck  laws,  55;  convict  labor  law 
79;  conciliation  and  arbitration, 
137;  union  preference,  180;  hours 
in  certain  textile  mills,  262;  hours 
of  labor  for  railroad  employees, 
272;  night  work  of  women,  275; 
employment  offices,  298;  work- 
men's compensation,  397. 

Marx,  Karl,  founds  International 
Workingmen'  Association,  453. 

Massachusetts,  Pacific  railroad,  3; 
wage  exemption  law,  48;  wage 
assignment  law,  50;  wage  pay- 
ment law,  52;  anti-truck  law,  55; 
fines  from  employees,  59;  child 
labor,  226,  334;  convict  labor, 
80;  decisions  on  strikes,  94,  103; 
on  picketing,  no;  conciliation 
and  arbitration,  137;  minimum 
wage,  196,  202-203,  209,  213; 
ten-hour  law,  231-233,  235,  242- 
244,  278;  posting  notices,  242; 
hours  in  public  work,  251,  278, 
284;  hours  on  street  railroads, 
257;  regulations  for  work  in  com- 
pressed air,  260,  349,  371;  hours 
of  railroad  employees,  272;  night 
work  of  women,  274;  one  day 
of  rest  in  seven,  280-281;  unem- 
ployment statistics,  289;  em- 
ployment offices,  300,  495;  acci- 
dent reporting,  326;  childbirth 
protection  of  women,  348,  422; 
safety,  356;  board  of  boiler  rules, 
359;  sanitary  standards,  365; 
fellow  servant  rule,  389;  old  age 
insurance,  431,  437;  life  insur- 
ance, 439;  appoints  first  factory 
inspectors,  451;  establishes  first 
bureau  of  labor  statistics,  456; 
railroad  commission,  478.  See 
also  Boston,  Fall  River,  Lowell, 
Suffolk  County. 

Master  and  servant,  stage  in  in- 
dustry, 36,  40-50. 

Matches,  poisonous  phosphorus  in 
manufacture  of.  See  Phosphorus. 

Maternity  insurance,  connection 
with  childbirth  protection,  348; 
provisions  for,  422-425. 

Mechanical  engineering,  unemploy- 
ment insurance  in,  444. 


550       PRINCIPLES  OF   LABOR  LEGISLATION 


Mechanics'  lien  laws,  50,  60,  6 1,  451. 

Mediation.     See  Conciliation. 

Medical  benefit,  deductions  from 
wages  for,  57,  58;  in  German 
social  insurance  system,  393,  420; 
importance  of,  404;  in  United 
States,  404-408. 

Melbourne,  Victoria,  sweating  in, 
162;  Age,  187;  chief  factory  in- 
spector, 212. 

Mercantile  employments,  minimum 
wage,  189,  201,  203,  204,  212, 
215;  hours  of  labor,  235,  239, 
241,  247;  Saturday  half -holiday, 
277;  child  labor,  335;  seats  for 
women,  364. 

Merchant  adventurers,  92. 

Merchant  gilds.     See  Gilds. 

Mexico,  slavery  and  peonage,  37; 
contract  laborers  imported  from, 
73;  prohibition  of  poisonous 
phosphorus,  355. 

Michigan,  padrone  system,  46;  con- 
tract labor  law,  44;  convict  labor, 
80;  picketing  illegal,  no;  mini- 
mum age  limits,  339.  See  also 
Calumet,  Detroit. 

Milk  wagon  drivers'  union  of 
Chicago,  trade  agreement,  284. 

Milwaukee,  Wis.,  public  employ- 
ment office,  299. 

Minimum  wage,  in  England,  153, 
190-193,  200,  206,  207,  211,  214- 
216;  basis,  185-187;  in  Australia, 
187-190,  198-200;  for  men,  188- 
193,  21 1 ;  France,  193;  Norway, 
194;  Argentina,  194;  Switzerland, 
195;  for  women,  193-198,  200- 
205,  473;  in  Canada,  195;  in 
United  States,  195-198,  470;  for 
children,  197,  201,  204,  205,  209, 
473;  in  relation  to  profits,  203; 
in  relation  to  unemployment,  202, 
213;  exemptions,  204;  adminis- 
tration, 205-210;  flat  rate  laws, 
205;  commissions,  207-210,  466; 
results,  210-216;  constitution- 
ality, 216-219. 

Mining,  labor  legislation,  27,  30/31; 
wage  payment  laws,  52,  53,  153; 
mechanics'  liens,  60;  strikes,  164, 
171,  191;  minimum  wage,  189, 
191 ;  hours  of  labor,  248,  253,  259, 
266-267,  461;  industrial  acci- 
dents, 259,  328,  329,  369;  occu- 


pational disease,  331 ;  child  labor, 
334,  336;  women's  work  forbid- 
den, 347;  safety  regulations,  353, 
368-371;  early  mutual  accident 
insurance,  386. 

Minnesota,  contract  labor  law,  44; 
railroad  employees'  law,  45;  con- 
vict labor  law,  80;  conciliation 
and  arbitration,  137;  minimum 
wage,  208,  214,  219;  seven  day 
labor,  222.  See  also  Duluth. 

Minors.  See  Child  labor,  Child 
labor  legislation. 

Mississippi,  ten-hour  law,  253;  up- 
held, 268-269. 

Missouri,  wage  assignment  law,  49; 
boycott  cases,  108;  picketing 
lawful,  in;  hours  of  labor  for 
women,  236;  accident  reporting, 
326;  childbirth  protection,  348; 
lead  poisoning,  351;  railroad  full 
crew  law,  377.  See  also  Kansas 
City. 

Montana,  constitution,  6;  convict- 
made  goods,  80;  boycott  cases, 
108;  child  labor  legislation,  229; 
hours  of  labor  for  women,  239; 
workmen's  compensation,  397; 
enforcement  of  labor  laws,  494, 

Mothers'  pensions,  441. 

Moving  picture  machine  operators, 
examination  and  registration,  352. 

Mundella,  A.  J.,  establishes  board 
of  conciliation  and  arbitration, 
129. 

Municipalities,  maintain  employ- 
ment offices,  297;  provide  work 
for  unemployed,  317. 

Munition  plants,  night  work  of 
women  in,  275. 


N 

National  Association  of  Legal  Aid 

Societies,  83. 
National  Child  Labor  Committee, 

334,343,453- 

National  Civic  Federation,  investi- 
gates workmen's  compensation, 
410. 

National  Conference  on  Industrial 
Diseases,  330. 

National  _  Council  for  Industrial 
Safety,  indorses  standard  accident 
reporting  schedule,  327. 


INDEX 


National    Farm    Labor    Exchange, 

302. 

National  Labor  Union,  26;  indorses 
eight-hour   movement,    252;    in- 
vestigates labor  conditions,  453. 
National  Metal  Trades'  Association, 
employment  offices,  292. 

National  War  Labor  Board,  estab- 
lished, 145;  principles  and  ac- 
tivity, 146. 

Navy  yards,  ten-hour  day,  248. 

Nebraska,  convict  labor,  80;  con- 
ciliation and  arbitration,  137; 
proposed  minimum  wage  bill,  196; 
minimum  wage  law  repealed,  197. 

Netherlands,  colonial  slavery  abol- 
ished, 37;  regular  wage  payment 
laws,  51;  fines  from  employees, 
59 ;  legal  aid,  84;  mediation  and 
arbitration,  136;  night  work  of 
women,  274;  compressed  air 
work,  350;  stone  masons,  351; 
prohibition  of  poisonous  phos- 
phorus, 355;  factory  lighting, 
361;  health  insurance,  417;  ma- 
ternity insurance,  423;  invalidity 
and  old  age  insurance,  432;  or- 
phans' pensions,  440;  unemploy- 
ment insurance,  443. 

Neuchatel,  industrial  courts,  87. 

Nevada,  wage  payment  law,  53; 
conciliation  and  arbitration,  138; 
Comstock  silver  mines,  260;  hours 
of  labor  in  plaster  and  cement 
mills,  262 ;  no  provision  for  seats 
for  salesgirls,  364. 

New  Brunswick,  state  loans  to 
farmers,  67. 

New  England  Female  Labor  Re- 
form Association,  231. 

New  England  Labor  Reform  League, 
231. 

New  England  Workingmen's  Asso- 
ciation, 231. 

New  Hampshire,  child  labor,  227; 
hours  of  labor  for  women,  232, 
235»  243.  $ee  a^so  Dover,  Man- 
chester. 

New  Jersey,  railroad  employees' 
law,  45;  deductions  from  wages 
for  benefits,  57;  convict  labor 
law,  80;  decisions  on  strikes,  104; 
on  picketing,  no;  child  labor, 
227,  333;  compressed  air  work, 
260,  273,  349,  351,  371;  no«rs  of 


labor  in  bakeries,  262; 
poisoning,  351;  fire  protection. 
359  \t  ventilation,  362;  work- 
men's compensation,  411.  See 
also  Bayonne,  Gloucester,  Pater- 
son. 

New  Mexico,  contract  labor  law, 
44;  no  limitation  of  women's 
hours,  233,  238;  no  provision  for 
seats  for  salesgirls,  364. 

New  South  Wales,  deductions  from 
wages  for  benefits,  57;  compul- 
sory arbitration,  153,  162-165; 
suffrage  law,  155;  strikes,  155, 
163;  union  preference,  167,  180; 
cooperative  contracts,  181.  See 
also  Australasia,  Australia. 

New  York  City,  employment 
agencies,  39,  293;  legal  aid,  82; 
voluntary  defenders,  84;  street 
cleaning  department,  177;  board 
of  estimate  fixes  street  cleaners' 
wages,  195;  cost  of  living,  195; 
vacations  for  public  employees, 
285;  ^  unemployment,  287,  313; 
association  of  employment  man- 
agers, 320;  children's  employ- 
ment certificates,  340;  tenement 
house  manufacture,  366-368 ; 
compressed  air  illness,  260,  371. 

New  York  state,  abolishes  imprison- 
ment for  debt,  47;  wage  exemp- 
tion law,  48;  inspection  of  work- 
ers' living  quarters,  55;  anti- 
truck  law,  55;  deductions  for 
benefits  to  injured  employees,  57 ; 
mechanics'  liens  and  wage  prefer- 
ence, 60;  bureau  of  agricultural 
information,  67;  convict-made 
goods,  80;  bureau  of  industries 
and  immigration,  86;  legal  aid, 
82-84,  86;  industrial  commission, 
86,  470,  472,  482,  488,  497;  seven 
day  labor,  222;  child  labor, 
341,  495;  hours  of  labor  for 
women,  239;  hours  of  labor  for 
railroad  employees,  254,  265,  272; 
hours  of  labor  in  compressed  air, 
260,  273;  hours  of  labor  in  brick- 
yards, 263;  bakeries,  268,  495; 
night  work  of  women,  275,  459, 
463,  466,  478;  court  of  apj>< 
276,  283;  Saturday  half-holiikiy 
in  stores,  277;  one  day  of  n-st  in 
seven,  280,  281,  283;  unemploy- 


552       PRINCIPLES   OF  LABOR   LEGISLATION 


ment  statistics,  289;  employment 
offices,  297,  298,  305;  occupa- 
tional disease,  349,  403;  night 
messenger  service,  338 ;  children's 
employment  certificates,  340,  341 ; 
restrictions  on  women's  work, 
347,  348;  compressed  air  work, 
349.  351,  37i;  fire  protection, 
359;  factory  ventilation,  362; 
seats  for  salesgirls,  364 ;  tenement 
house  manufacture,  366-368,  496; 
employers'  liability,  391;  work- 
men's compensation,  397-400, 
403 ;  number  oi  factory  inspectors, 
451;  administration  of  labor  law, 
chart,  470;  commission  for  safety 
and  workmen's  compensation, 
472;  prosecutions,  490;  tagging 
sweatshop  products,  497. 

New  Zealand,  mechanics'  liens,  61; 
state  loans  to  farmers,  67;  liter- 
acy test  against  Chinese,  76; 
trade  union  law,  153:  labor  situa- 
tion, 155-161;  arbitration  acts, 
155-161,  1 66;  parties,  160;  union 
preference,  158,  165,  166;  coop- 
erative contracts,  181;  old  age 
pensions,  436;  mothers'  pensions, 
441. 

Newlandsact,  working  of ,  138,  141- 
142,  143. 

Newsboys.     See  Street  trades. 

Night  messenger  service,  age  stand- 
ards for,  338. 

Night  work,  prohibited,  for  women, 
234,  239,  273-277,  454,  459,  463, 
477;  for  children,  276;  for  young 
persons,  338. 

North  Carolina,  Sunday  law,  282; 
child  labor,  336,  343. 

North  Dakota,  contract  labor  law, 
44;  state  loans  to  farmers,  67; 
minimum  wage  law,  196. 

Norway,  minimum  wage  law,  194; 
employment  offices,  312;  health 
insurance,  417;  maternity  in- 
surance, 423;  unemployment  in- 
surance, 443;  superior  council  of 
labor,  480.  See  also  Scandinavia. 

Nova  Scotia,  state  loans  to  farmers, 
67. 

Nuremberg,  convention  of  legal 
aid  societies,  84. 

Nurses,  included  in  hour  legislation, 
246. 


O 

Occupational  diseases,  defined,  330; 
investigations,  330,  331;  report- 
ing. 33 1;  statistics,  332;  exami- 
'nations,  349-352;  in  relation  to 
workmen's  compensation,  354, 
385.  396,  403 ;  in  relation  to  health 
insurance,  354,  403. 

Ohio,  deductions  from  wages  for 
benefits,  57;  convict  labor,  80; 
conciliation  and  arbitration,  137, 
138;  industrial  commission,  197, 
382,  472;  minimum  wage,  197; 
child  labor,  227,  228,  339;  ten- 
hour  law  for  women,  233;  eight- 
hour  day,  252;  public  employ- 
ment offices,  297;  accident  re- 
porting, 326;  restrictions  on 
women's  work,  347;  lead  poison- 
ing, 35 1 1  362;  factory  ventilation, 
362.  See  also  Cleveland. 

Oklahoma,  state  loans  to  farmers, 

'  67;  boycotts  probably  legal,  108; 

conciliation  and  arbitration,  137. 

Old  age  insurance,  state  assisted, 
431;  compulsory,  432;  pensions, 
435- 

Oleomargarine,  colored,  suppression 
of,  15. 

One  day  of  rest  in  seven,  need  of 
legislation,  279;  existing  laws, 
280;  sustained  by  courts,  282- 
284. 

Ontario,  licensing  system  for  private 
employment  offices,  294. 

Open  shop,  true  character  of,  120. 

Oregon,  deductions  for  benefits  regu- 
lated, 57;  state  loans  to  farmers, 
67;  convict  labor  law,  80;  picket- 
ing illegal,  no;  secrecy  regarding 
wages,  1 86;  minimum  wage  law, 
196,  202,  209,  212,  213,  218;  hours 
of  labor  for  women,  233,  239,  241, 
245-247,462;  social  survey,  236; 
hours  of  labor  in  manufacturing, 
248,  253,  262,  268;  ten-hour  law 
upheld,  248,  268;  eight-hour  day, 
253;  night  work  of  women,  275; 
Sunday  law,  282;  lighting  re- 
quirements, 360;  workmen's 
compensation,  412.  See  also 
Portland. 

Orientals,  exclusion  of,  69,  74-76. 

Orphans,    special     regulations    for 


INDEX 


553 


employment  of,  334;    social  in- 
surance for,  394,  439-441. 


Pacific  railroad,  completion,  3. 

Padrone  system,  46,  47. 

Panic  of  1837,  26. 

Paper  industry,  hours  of  labor,  222. 

Parasitic  industries,  203. 

Paris,  industrial  courts,  88;  labor 
clause  in  subway  franchise,  258; 
exposition  of  1900,  453. 

Parliament,  treatment  of  seamen, 
44;  enacts  trade  disputes  act,  123; 
fixes  wages,  152;  prohibits  labor 
combinations,  152;  in  relation  to 
trade  boards,  191.  See  also 
Great  Britain. 

Parties,  in  New  Zealand,  160,  161; 
in  Australia,  161,  166;  in  United 
States,  169;  in  Great  Britain,  190. 

Partnerships,  distinguished  from 
trade  unions,  117,  124. 

Paterson,  N.  J.,  ten-hour  strikes, 
232. 

Patria  potestas,  12. 

Pawnbrokers,  abuses  by,  82. 

Peacock,  -Sir  Alexander,  on  mini- 
mum wage  boards,  188. 

Penalties  for  violating  labor  laws, 
490-492;  cumulative,  492;  civil 
and  criminal  actions,  492. 

Pennsylvania,  railroad  employees' 
law,  45;  labor  camps  regulated, 
55;  convict  labor  law,  80;  at- 
tempt to  establish  industrial 
courts,  89;  picketing  illegal,  no; 
anthracite  coal  strike,  148;  ten- 
hour  law  for  children,  227,  228; 
ten-hour  law  for  women,  232, 
234;  regulations  for  work  in 
compressed  air,  260,  349,  371; 
eight-hour  day  in  public  em- 
ployment 263 ;  fund  for  emergency 
public  work,  317;  public  employ- 
ment offices,  322;  regularization 
of  industry,  322 ;  lead  poisoning, 
351;  factory  ventilation,  362; 
railroad  full  crew  law,  377;  in- 
vestigates woman  and  child  labor, 
455;  industrial  commission,  472. 
See  also  Philadelphia,  Pittsburgh. 

Pennsylvania-East    River   tunnels, 


Peonage,  as  stage  in  industry,  36- 
41;  characteristics,  37;  abolished 
in  Mexico,  38;  abuses,  39,  40; 
in  relation  to  contract  labor,  42. 

Pere  Marquette  railroad  strike,  145. 

Petroleum  refineries,  hours  of  labor, 
221. 

Philadelphia,  American  Federation 
of  Labor  convention,  253;  street 
railroads,  256;  association  of  em- 
ployment managers,  320;  Work- 
ing Men's  Party  congress,  334. 

Philippines,  contract  labor,  42.  See 
also  Manila. 

Phosphorus,  prohibition  of  poison- 
ous, ii,  15,  324,  355,  454;  com- 
pensation for  poisoning  by,  403. 

Picketing,  in  relation  to  executive, 
2 1 ;  as  used  against  intangible 
property,  96;  illegal  in  Califor- 
nia, 100,  no;  judicial  views  on, 
109-112;  in  Sherman  antitrust 
act,  12 1 ;  in  English  law,  123;  in 
South  Australia,  165. 

Pittsburgh,  Pa.,  conference  of  legal 
aid  societies,  83;  steel  workers, 
222,  224;  women  textile  workers, 
232. 

Plumbers,  registration  and  examina- 
tion of,  352. 

Poisons,  list  of  industrial,  330.  See 
also  Lead,  Occupational  Disease, 
Phosphorus. 

Poland,  health  insurance,  417;  ma- 
ternity insurance,  423. 

Police  power,  belongs  to  states,  11, 
15;  in  relation  to  guardianship, 
12,  14;  defined,  13;  in  relation 
to  labor  legislation,  13-15,  476; 
in  relation  to  eminent  domain, 
14;  in  relation  to  taxing  power, 
14;  in  relation  to  liberty  and 
property,  14,  15;  indefinite  char- 
acter, 1 6,  17;  in  relation  to  other 
governmental  powers,  17;  in  re- 
lation to  public  benefit,  25;  in 
relation  to  health,  27;  in  relation 
to  shifting  population,  25;  in 
relation  to  inequality  of  bargain- 
ing power,  33;  in  coal  screening 
laws,  53;  in  minimum  wage  law*. 
217-218;  in  relation  to  hours  of 
labor,  247,  262,  282,  283;  in  child 
labor  legislation,  338;  in  relation 
to  investigation,  464. 


554       PRINCIPLES   OF  LABOR   LEGISLATION 

Policemen,    excluded    from    eight-  Public  domain,  in  relation  to  home- 
hour  laws,  251.  stead  laws,  3. 
Political    offenders,    not    excluded  Public     employment,      mechanics' 

from  United  States,  69.  liens,  60;  unions,  175-180;  mini- 
Politics,  in  relation  to  labor  con-  mum  wage,   195,  217;    hours  of 

tract,  4,  5.  labor,  248-252;  annual  vacations, 

Polygamists,    forbidden    to    enter  284;    as  remedy  for  unemploy- 

United  States,  69.  ment,  312-319;    workmen's  com- 

Poor  law,  Eiizabethan,*337.  pensation,  397, 401 ;  pensions,  437. 

Poor  Man's  Lawyer's  Association,  Public  opinion,  on  labor,  25-28;  in- 

84.  fluences  judicial  opinion,  25,  28. 

Population,  shifting  of,  in  relation  Public  utilities,  controlled  by  gov- 

to  police  power,  25.  ernment,  13;  laws  regulating,  29; 

Portland,  Ore.,  public  defender,  84;  labor  clauses  in  franchises,  258; 

minimum  wage,  213;    maximum  commissions,  476,  484. 

hours,  218,  241.  Pullman  strike,  134. 
Porto    Rico,    eight-hour    law    for 

women,    237;     workmen's   com-  Q 

pensation,  397.  ** 

Portugal,  abolishes  colonial  slavery,  Quarrying  industry,  accidents,  328; 

37;  health  in  glass  industry,  356.  occupational  disease,  330. 

Postal  employees,  unionism  among,  Quebec,  minimum  wage  law,   195; 

176-177;  hours  of  labor,  250;  one  private  employment  offices,  296. 

day  of  rest  in  seven,  280.  Queensland,     compulsory    arbitra- 

Preferential  union  shop.     See  Union  tion,    153,    165;    labor  ministry, 

preference.  162;    minimum  wage,    189.     See 

President,  powers  regarding  media-  also  Australasia,  Australia. 

tion  and  arbitration,    138,    141, 

143,   145,    148;    issues  executive  -D 

orders,  176;   memorial  to,  on  oc- 
cupational   diseases,     330;     ap-  Raiffeisen  banks,  67. 

points     members    of     industrial  Railroad  brotherhoods,  oppose  corn- 
commission,  455.  pulsory  arbitration,   171;    in  re- 
Price  bargain,  history,  92,  93;  con-  lation  to  corporations,   179;    se- 

trasted  with  wage  bargain,  116-  cure  reduction  of  hours,  254. 

118.  Railroad    commission    laws,     119, 

Printing  industry,  hours  of  labor,  378;    origin  of,   467;    compared 

226;    employment  offices,  292.  with  industrial  commission  laws, 

Prison  labor.     See  Convict  labor.  468. 

Profits,    in    relation    to    minimum  Railroads,  terms  of  service,  15,  45, 

wage,  203.  46;   work  accidents,  33,  328,  329; 

Property,   varying   conceptions,    I,  payment    of    benefits,    58;     me- 

7~9.  25.  26,  95,  96;    in  relation  chanics'  liens,  60;  hours  of  labor, 

to  labor  contract,  7-10;   in  rela-  143,  222,  253-256,  263-266,  272, 

tion  to  police  power,  14,  15.  279;     accident    reporting,    327; 

Prosecutions,    for    violating    labor  safety  regulations,  352,  372,  374- 

laws,  451,  492-498.  379- 

Prostitutes,     forbidden     to     enter  Railway  Wage   Board,   appointed, 

United  States,  69.  143. 

Prussia,    railroad   employees,    178;  Reasonableness,  as  a  standard  for 

labor  homes  for  unemployed,  315.  labor  legislation,  30,  31,  469,  472, 

See  also  Germany.  479,  482. 

Public   benefit,    as   a   principle   of  Regularization  of  industry,  319-322. 

government,    24-28,    476;     stage  Rehabilitation    of    industrial    crip- 

in  labor  legislation,  27,  pies,  410, 


INDEX 


555 


Representation  of  interests,  in  wage 
boards,  208,  482,  483;  in  employ- 
ment offices,  299,  308,  309,  481; 
in  administration  of  labor  laws, 
479-486. 

Republican  government,  guaranteed 
by  constitution,  6. 

Responsible  government,  in  relation 
to  administration  of  labor  laws, 
484. 

Rest,  weekly  day  of,  248,  278-284. 

Rest  periods,  271-286. 

Restraint  of  trade  doctrine,  as  ap- 
plied to  labor,  96. 

Rhine  territory,  industrial  courts, 
87. 

Rhode  Island,  suffrage,  4;  weekly 
wage  payment  law,  51;  early 
child  labor  laws,  227;  hours  on 
street  railways,  257;  accident  re- 
porting, 326. 

Right  to  work,  Idaho,  law,  317. 

Rock  Island,  111.,  arsenal,  em- 
ployees' representation  in  man- 
agement, 177, 

Rolling  mills,  hours  of  labor,  221. 

Roman  law,  on  slavery,  36.  See 
also  Patria  potestas. 

Roosevelt,  President,  appoints  an- 
thracite "  coal  strike  commission, 
148. 

Rossi,  Dr.,  on  padrone  system,  46. 

Roumania,  mediation  and  arbitra- 
tion, 136;  government  employees, 
175;  health  insurance,  417;  ma- 
ternity insurance,  423;  invalid- 
ity and  old  age  insurance,  432. 

Rubinow,  I.  M.,  study  of  work  ac- 
cidents, 405. 

Rural  credits  law,  67. 

Russia,  agricultural  credits,  67;  em- 
igration from,  72;  government 
employees,  175;  lead  poisoning, 
350;  health  insurance,  417;  ma- 
ternity insurance,  423;  govern- 
ment life  insurance,  439. 

S 

Safety,  adoption  of  devices,  15;  a 
social  question,  323;  prohibitive 
method,  332-356;  in  relation  to 
employers'  liability,  356,  387; 
regulative  methods,  356-3791  de- 
fects of  early  legislation,  379-381 ; 


administrative  orders,  381,  382; 
movement  for,  382,  385;  en- 
couraged by  workmen's  compen- 
sation legislation,  447;  employ- 
ers' work  for,  498. 

Saloons,  women  forbidden  to  work 
in,  347- 

Saskatchewan,  minimum  wage  law, 
195- 

Saturday  half-holiday,  277-278. 

Sawmilling,  mechanics'  liens,  60. 

Scandinavia,  emigration  from,  72. 
See  also  Norway,  Sweden. 

Schultze-Delitsch  banks,  67. 

Scientific  management.  See  Time 
study. 

Scotland,  employment  offices,  311. 

Seamen,  contracts  of,  4,  36,  44,  45, 
372;  hours  of  labor,  258;  safety, 
352,  372-374;  early  mutual  ac- 
cident insurance  among,  386. 

Seattle,  Wash.,  municipal  employ- 
ment office,  302;  provision  for 
itinerant  workers,  315. 

Seats,  legislation  providing,  364. 

Senate  committee  on  labor  and 
capital,  455. 

Separation  of  powers,  22. 

Serfdom,  as  stage  in  industry,  35- 

37,  53- 
Servia,    wage    payment    law,    53; 

mediation  and  arbitration,    i.y>; 

health  insurance,  417;  maternity 

insurance,  423. 
Servitude,  gradual  transition  from, 

31.  32. 
Shaw,    Chief   Justice,    decision   on 

fellow  servant  rule,  389. 
Sherman  antitrust  act,  96,  122. 
Silk  weaving,  occupational  disease 

in,  330- 
Slavery,  in  southern  states,  3,  41; 

as  stage  in  industry,  35-37,  53'. 

in  England,  36;  abolition,  36-38. 
Sleeping   in   workrooms  forbidden, 

365- 

Social  insurance,  against  unemploy- 
ment, 289,  303,  310,  321, 442-448; 
denned,  384;  against  industrial 
accidents,  392-415;  against  ill- 
ness, 415-429;  maternity,  422- 
425;  against  old  age  and  invalid- 
ity, 429-438;  for  widows  an<l 
orphans,  439-441 ;  cooperative 
character  of,  498-500. 


556      PRINCIPLES  OF  LABOR  LEGISLATION 


Socialism,  development  of,  26; 
movement  for,  in  New  Zealand, 
161;  in  relation  to  eight-hour 
day,  253. 

Solidarism,  in  labor  legislation,  499- 
500. 

South  Africa,  coolie  labor  in,  42; 
immigration  law,  74. 

South  Australia,  medium  of  pay- 
ment law,  54;  compulsory  arbi- 
tration, 153,  165;  labor  ministry, 
162;  minimum  wage,  190;  work- 
men's compensation  for  occupa- 
tional disease,  396. 

Southern  states,  slavery,  3,  41;  pe- 
onage, 39,  40;  indentured  ser- 
vice, 41 ;  enforcement  of  labor 
laws,  451. 

South  Carolina,  hours  of  labor  in 
textile  mills,  262;  night  work  of 
women,  275. 

South  Dakota,  state  loans  to  farm- 
ers, 67. 

Sovereignty,  in  American  constitu- 
tional system,  15. 

Spain,  industrial  courts,  87;  media- 
tion and  arbitration,  136;  night 
work  of  women,  274;  protection 
of  women  and  children,  348;  pro- 
hibition of  poisonous  phosphorus, 
355;  old  age  insurance,  432. 

Spaniards,  in  Mexico,  37. 

Specific  performance  of  contracts, 
4,32. 

Spokane,  Wash.,  minimum  wage, 
196,  217. 

State,  constitutions,  on  natural 
rights,  5,  6;  bank-notes,  15;  su- 
preme courts,  19,  23. 

"State  use"  system  of  convict  la- 
bor, 80. 

Stationary  firemen  and  engineers, 
safety  regulations,  353. 

Status,  in  relation  to  industry,  35, 36. 

Steel  industry,  hours  of  labor,  222, 
226. 

Stenography,  hours  of  labor,  247. 

Steward,  Ira,  inaugurates  eight- 
hour  movement,  252. 

Street  cleaners'  organization,  177, 
179. 

Street  railroads,  organization  of  em- 
ployees, 178;  minimum  wage, 
189;  hours  of  labor,  222,  256- 
258;  accident  reporting,  327;  ex- 


amination and  registration  of  em- 
ployees, 352;  safety  regulations, 
376. 

Street  trades,  regulation  of,  338. 

Strikes,  in  relation  to  executive,  2 1 ; 
for  shorter  hours,  26;  violence 
in,  95;  aim  of,  98;  legal  in  Cali- 
fornia, 100 ;  sympathetic,  100, 
102;  uncertainty  of  term,  101; 
opinions  as  to  legality,  103-107; 
in  Clayton  antitrust  act,  112; 
publicity,  115;  in  Sherman  anti- 
trust act,  121 ;  increased  number, 
125;  in  England,  129-136,  191; 
compared  with  lockouts,  115;  in 
Australasia,  155-170;  forbidden 
in  certain  industries  in  Kansas, 
173;  in  relation  to  employment 
offices,  300,  308. 

Suffolk   County,    Mass.,   minimum 

•     wage,  196. 

Suffrage,  effect  of  equal,  2,  175,  179; 
extension,  4,  5,  26. 

Sugar  and  molasses  industry,  hours 
of  labor  in,  221. 

Sunday  rest  laws,  278. 

Sunderland,  England,  decasualiza- 
tion  of  dockers,  321. 

Supreme  Court,  powers,  23;  de- 
cision in  Holden  v.  Hardy,  27,  245, 
461;  on  public  benefit,  28,  399; 
on  trade  unions,  30,  113;  on 
peonage,  39,  40,  43,  44;  on  coal 
screening  laws,  53;  on  Sherman 
antitrust  act,  96;  on  conspiracy 
doctrine,  97;  on  boycotts,  107; 
on  Oregon  minimum  wage  law, 
196,  218;  decision  on  Oregon  ten- 
hour  law,  233,  245;  on  California 
eight-hour  law,  246;  on  hours  of 
labor,  250,  263,  265-268,  465; 
pending  decision  on  night  work 
of  women,  276;  on  Sunday  laws, 
282 ;  pending  decision  on  railroad 
commission,  379. 

Swansea,  Wales,  decasualization  of 
ship-repairers,  321. 

"Swapping,"  in  textile  industry, 
238, 

Sweating  system,  in  Victoria,  162, 
163,  187-189;  in  England,  190; 
in  United  States,  195,  197,  366- 
368;  licenses,  496;  tagging  prod- 
ucts, 497. 

Sweden,  mediation  and  arbitration, 


INDEX 


557 


136;  employment  offices,  312; 
health  insurance,  416;  invalidity 
and  old  age  insurance,  432.  See 
also  Scandinavia. 

Switzerland,  executive  council,  18; 
regular  wage  payment  law,  51; 
fines  from  employees,  59;  legal 
aid,  84;  industrial  courts,  87,  88; 
mediation  and  arbitration,  136; 
railroad  employees,  179;  federal 
council,  273,  396;  employment 
offices,  312;  prohibition  of  poison- 
ous phosphorus,  355;  workmen's 
compensation  and  occupational 
diseases,  396;  health  insurance, 
416;  unemployment  insurance, 
443 ;  International  Association 
for  Labor  Legislation,  455;  su- 
perior council  of  labor,  480.  See 
also  Berne,  Geneva,  Neuchatel. 

Syndicalism,  in  New  Zealand,  160. 


Taft,  President,  vetoes  literacy  test, 
76;  defines  boycotts,  102. 

Tailoring.     See  Clothing  trade. 

Tanning  industry,  anthrax  in,  331. 

Tariff,  in  relation  to  labor,  II,  15, 
26,  70. 

Tasmania,  minimum  wage,  153, 189, 
214;  labor  ministry,  162;  strikes, 
1 66.  See  also  Australasia,  Aus- 
tralia, 

Taxation,  as  basis  of  labor  legisla- 
tion, n,  15;  in  relation  to  gov- 
ernment property,  12,  13;  place 
in  constitutional  system,  14,  15; 
used  for  health  purposes,  355. 

Taxpayer,  protected  by  immigra- 
tion legislation,  69,  70. 

Teachers,  organizations  of,  178. 

Telegraph  establishments,  hours  in, 
235.  277. 

Telephone  establishments,  hours  in, 
235,  240,  277. 

Tenants,  agricultural,  63,  65-68. 

Tenement  house  manufacture,  evils 
of,  366;  regulation  and  prohibi- 
tion of,  367,  368,  495. 

Tennessee,  supreme  court,  33. 

Texas,  agricultural  tenancy  law,  64; 
minimum  wage  law,  196;  hours 
of  labor  for  women,  236.  See  also 
Dallas. 


Textile  industry,  fines,  59;  early 
agitation  for  snorter  hours,  231- 
233;  child  labor,  333,  335;. safety 
regulations,  356,  357. 

Thrift,  in  relation  to  social  insur- 
ance, 384. 

Time  study,  of  federal  employees, 
forbidden,  250. 

Toilets,  legislation  regarding,  364. 

Tools,  exempted  from  seizure,  49; 
charges  for,  57. 

Toronto,  Bell  Telephone  Co.  dis- 
pute, 240. 

Towns,  in  relation  to  collective  bar- 
gaining, 91,  92. 

Trade  agreements,  characteristics 
of,  117-120. 

Trade  boards  act  of  1909  (Eng- 
land), 191. 

Trade  disputes.     See  Strikes. 

Trade  disputes  act  of  1906  (Eng- 
land), 123. 

Trade  marks,  as  intangible  prop- 
erty, 8. 

Trade  names,  as  intangible  prop- 
erty, 8,  95. 

Trade  unions,  as  controlling  legis- 
lature, 24;  development,  26; 
judicial  opinion  of,  30,  102,  103; 
oppose  contract  labor,  7 1 ;  effect 
of  Clayton  antitrust  acton,  113; 
workmen's  right  to  belong  to,  1 14 ; 
distinguished  from  partnerships 
and  corporations,  117,  118,  124; 
safeguards  against  abuses  of,  119; 
effect  of  Danbury  hatters'  case 
on,  121-122;  position  in  England, 
123-125;  .oppose  compulsory  ar- 
bitration, 131-134;  of  public  em- 
ployees, 175-181;  in  relation  to 
minimum  wage,  197,  215;  in  re- 
lation to  hour  regulations,  248, 
252;  unemployment  statistics, 
289;  employment  offices,  292; 
increase  power  of  worker, 
provide  health  insurance,  4i<>; 
in  relation  to  unemployment  in- 
surance, 442;  in  relation  to  rep- 
resentation of  interests,  480-486; 
in  relation  to  civil  service,  486- 
488.  See  also  Closed  shop,  Col- 
lective bargaining,  Open  shop, 
Union  preference. 

Trades  Union  Congress,  130,  131. 


558       PRINCIPLES   OF  LABOR   LEGISLATION 


Trades'  Union  National  Conven- 
tion, 231. 

Transportation,  influence  on  labor 
market,  25;  hours  of  labor,  253- 
258.  See  also  Railroads,  Seamen, 
Street  railroads. 

Treitschke,  H.,  cited,  16. 

Trial  by  jury,  guaranteed  by  con- 
stitution, 6;  in  Clayton  anti- 
trust act,  113. 

Truck  system,  55,  56. 

Trusts,  fix  prices,  93. 

Tuberculosis,  reason  for  excluding 
immigrants,  69. 

Tunnel  workers,  occupational  dis- 
ease among,  331. 

Turkey,  public  employees,  175. 

Turnover  of  labor,  extent,  288; 
wastes,  288. 

Typographical  union  label,  180. 

U 

Unconstitutionally  of  legislation. 
See  Constitutionality. 

Unemployment,  defined,  2;  history, 
3,  26  in  relation  to  minimum 
wage,  202,  213;  statistics,  287- 
291;  waste  of,  287;  causes,  288; 
insurance  against,  289,  310,  442- 
448 ;  lack  of  information  on,  289, 
302 ;  in  relation  to  public  employ- 
ment, 312-319;  regularization  of 
industry  to  reduce,  319-322.  See 
also  Employment,  Employment 
offices. 

Unfreedom,  stage  in  economic  de- 
velopment, 3,  4. 

tJnion  preference,  166,  167,  180. 

Unionism.     See  Trade  unions. 

United  States,  abolishes  slavery,  37, 
38;  rural  credits  law,  67;  statis- 
tics of  strikes  and  lockouts,  125; 
Commissioner  of  Labor,  138;  De- 
partment of  Labor,  138,  302,  305, 
456,  468;  parties,  169;  arbitra- 
tion, 136-151,  168-174;  unions 
in  public  employment,  176,  177; 
War  Department,  177;  mini- 
mum wage,  195-198;  Census  of 
1870,  235;  statistics  of  mine  ac- 
cidents, 259,  369;  Bureau  of  En- 
graving and  Printing,  284;  Gov- 
ernment Printing  Office,  284; 
Census  of  1900,  287;  Census  of 


Manufactures,  290;  workmen's 
compensation ,  3  9  7-4 1 5 ;  army , 
328;  Bureau  of  Alines,  370,  468; 
health  insurance  discussed,  417; 
old  age  and  disability  insurance 
for  federal  employees,  434,  435; 
Bureau  of  Labor,  452,  456; 
American  section  of  International 
Association  for  Labor  Legisla- 
tion, 454;  Department  of  Agri- 
culture, 302;  Department  of  the 
Interior,  468;  Department  of 
Commerce,  468;  Bureau  of  Im- 
migration, 468;  Bureau  of  Labor 
Statistics,  468;  Children's  Bu- 
reau, 468;  Treasury  Depart- 
ment, Public  Health  Service,  468; 
Board  of  Mediation  and  Concilia- 
tion, 468;  Trade  Commission, 
476,484;  Federal  Reserve  Board, 
484. 

United  States  Steel  Corporation,  3. 

Unorganized  workers,  representa- 
tion of  on  joint  councils,  485. 

Unskilled  workers,  and  compulsory 
arbitration,  169. 

Usury  laws,  29. 

Utah,  state  loans  to  farmers,  67; 
minimum  wage,  205;  eight-hour 
law  for  women,  237;  for  miners, 
266,  267. 


Vacations,  provision  for  annual, 
284-286. 

Vagrancy  laws,  as  cause  of  peonage, 
39,  40,  81. 

Van  Buren,  President,  establishes 
ten-hour  day,  248. 

Vermont,  decisions  on  strikes,  104; 
conciliation  and  arbitration,  137; 
hours  of  labor  for  women,  271. 

Vessels,  construction  of,  mechanics' 
liens,  60;  unemployment  insur- 
ance, 444. 

Victoria,  minimum  wage,  153,  162, 
163,  166,  188-189,  199,  211-214; 
anti-labor  ministry,  162;  Anti- 
Sweating  League,  188;  Chamber 
of  Manufacturers,  188,  189,  214; 
Employers'  Association,  214.  See 
also  Australasia,  Australia,  Mel- 
bourne. 

Villeinage.     See  Serfdom. 

Virginia,  picketing  legal,  in. 


INDEX 


'559 


Vocational  guidance,  in  relation  to 
employment  offices,  301,  309,  310. 
See  also  Education,  Industrial 
education. 

Voluntary  defenders,  84. 

W 

Wage  bargain,  history,  92,  93;  con- 
trasted with  price  bargain,  116- 
II 8.  See  also  Labor  contract. 

Wage-earners,  development  as  class, 

4- 

Wage,  minimum.  See  Minimum 
wage. 

Wages,  prevailing  rate,  13,  195; 
exemption  laws,  26,  31,  47,  48, 
60,  61,  451;  payment  laws,  33, 
50-56,  183,  450;  assignment,  49, 
50;  preference  laws,  50,  60,  61; 
deductions  from,  56;  rates,  154, 

185,  384- 

Wages  boards.    See  Minimum  wage. 

Wales,  employment  offices,  311. 
See  also  Cardiff,  Swansea. 

Washington,  picketing  illegal,  no; 
minimum  wage,  201,  202,  209, 
216;  hours  of  labor  for  women, 
241;  eight-hour  day,  253;  night 
work  prohibited,  277;  private 
employment  agencies  prohibited, 
295,  296;  law  declared  unconsti- 
tutional, 296;  workmen's  com- 
pensation, 412;  sanitary  require- 
ments for  bakeries,  496.  See  also 
Seattle,  Spokane. 

Watertown,  Mass.,  arsenal  arbitra- 
tion plan,  177. 

West  Indies,  contract  labor,  42. 

West  Virginia,  supreme  court,  21; 
no  regulation  of  children's  hours, 
229;  no  limitation  of  women's 
hours,  233,  238. 

Western  Australia,  deductions  from 
wages  for  benefits,  57;  compul- 
sory arbitration,  153,  165;  labor 
ministry,  162;  union  preference, 
167. 

Widows,  pensions  for,  394,  439. 

Wilson,  President,  vetoes  literacy 
test,  77. 

Wisconsin,  wage  exemption  law,  48; 
minimum  wage,  201,  204,  209; 
public  employment  offices,  300, 


488;  industrial  commission,  299, 
359,  404,  472;    workmen's  com- 
pensation, 403,  404;  old  age  i; 
ance,  432 ;  state  life  insurance,  439 ; 
Merchants'   and   Manufacturers' 
Association,  481;    Slat 
tion  of  Labor,  48 1 .     See  also  M  il- 
waukee. 

Women,  basis  of  labor  legislation 
for,  30,  31,  346,  363;  as  • 
petitors,  68;  in  relation  to  com- 
pulsory arbitration,  169,  iH«; 
rates  of  wages,  183-187;  unions 
among,  186;  minimum  wage  for, 

195-198,   200-202,    203,   207-209, 

2 1 8,  473;  budgets,  202;  on 
minimum  wage  commissions,  207 ; 
legislation  on  hours  for,  230-247, 
271,  273-277,  281,  459,  463- 
465,473;  organizations,  231-233; 
freedom  of  contract,  244-246; 
employments  forbidden,  346- 
348,  473;  childbirth  protection, 
348;  maternity  insurance,  422- 
425. 

Wood,  mayor  of  New  York  City, 
message  on  unemployment,  313. 

Work  accidents.  See  Employers' 
liability,  Workmen's  compensa- 
tion. 

Working  Men's  Party,  opposes  child 
labor,  334. 

Workmen's  compensation,  in  rela- 
tion to  police  and  commerce  pow- 
ers, 15,  463;  in  relation  to  equal- 
ization of  bargaining  power,  31; 
in  relation  to  occupational  disease, 
354,  369,  385,  395-396,  403; 
develops  out  of  employers'  liabil- 
ity, 386-392;  German  system, 
392-394;  American  laws,  397- 
415;  scope  of  laws,  401-403; 
scale  of  compensation,  403-410; 
administration,  410,  411;  insur- 
ance, 411-414;  encourages  safety 
movement,  414;  investigations 
on,  410,  412;  commissions,  469- 
472;  introduces  "cooperative 
pressure,"  498-500. 

Workmen's  Compensation  Service 
Bureau,  indorses  standard  acci- 
dent reporting  schedule,  327. 

Wyoming,  convict  labor  law,  80; 
child  labor,  343. 


THE    END 


14  DAY  USE 

RETURN  TO  DESK  FROM  WHICH  BORROWED 

LOAN  DEPT. 

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5  1968  S  0 


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